The judgment of compulsory nonsuit must be sustained if plaintiff’s evidence considered in the light most favorable to him fails to show any actionable negligence on defendant’s part, or if his evidence considered in the same light affirmatively shows contributory negligence on his part so clearly that no other conclusion can be reasonably drawn therefrom.
Jenkins v. R. R.,
The only eye witness to the actual collision was plaintiff. His evidence, considered in the light most favorable to him,
Raper v. McCrory-McLellan Corp.,
North-South Street in Mt. Airy runs approximately in a north and south direction. The tracks of the Southern Railway run east and west, and cross this street at a grade crossing from northeast to southwest on a slight curve, according to plaintiff, and on a sharp curve, according to his witness B. J. Ledford. Plaintiff, at 7:30 p.m. on 11 September 1959, was driving his automobile north on this street and approaching this crossing at a speed of about 20 miles an hour. His right window was up; his left window was down. It was dark. This street is downhill in the direction he was approaching the crossing, until it is within about 100 feet from the crossing, where it levels off. Defendant’s train was approaching the crossing going west.
Plaintiff had been familiar with this crossing for the last fifteen years. He had traveled over it seven or eight times a day for two or three years immediately prior to the collision in the instant case. During this time he had seen defendant’s trains use this crossing 25 or 30 times.
A railway crossarm sign was erected at the crossing on the side of the railway tracks plaintiff was approaching, which plaintiff said he did not see. On the same side of the railway tracks, about 100 feet from the tracks, was a triangular, diamond-shaped sign bearing the words “Railroad Crossing Ahead,” which is difficult to see because of trees. To the right of North-South Street, as plaintiff approached the crossing, was a bank covered with old field pines and undergrowth, which extends to within ten feet of the first rail of the railway tracks. The bushes on this bank were three to five feet high or higher. This bank was two feet high twelve or fifteen feet from the railway rail, as plaintiff approached it, and rose to a height of twelve or fifteen feet twenty feet from this rail.
B. J. Ledford, a witness for plaintiff, has lived in Mt. Airy 40 years. He was a member of the police force there for 10 years up to September 1959. He is thoroughly familiar with this crossing. He testified: “As to my knowledge as to the custom and usage for defendant Southern Railway, the train would stop as it came to the intersection. Based on my familiarity with the custom and usage by the defendant, the Southern Railway, the flagman, if there was no oncoming traffic, would motion the engine to come on through. * * * When the train was approaching the intersection, their habits were always to blow the whistle and ring a bell.”
Plaintiff testified: “As I came around the curve I was traveling about 20 miles an hour. I changed the speed of my automobile as I approached the grade crossing. I removed my foot from the accelerator. As to how far from the crossing, traveling on this road, you can first see the crossing itself, the point where the tracks cross the road, I’ll say around 30 feet. * * * I was traveling north on North-South Street coming down at a speed of 20 or 25 miles an hour which I reduced speed as I come down the slope there, as I started around the curve. I didn’t observe no whistle blowing, no flagman or bell ringing, or nothing. All of a sudden I heard brakes on the train and that’s where the collision happened. That’s when I collided, when the train hit me. I was approximately 30 feet when I heard the brake on the train. My headlights were burning. * * * When I came to myself after the collision, they was
(sic)
putting me in the ambulance. * * * At other times I have used this crossing, there would be a flagman out there, a whistle blowing and a bell ringing. I have never seen this crossing in use by the railroad when there was not a flagman stationed there. * * I never saw the train at all until after the wreck. I didn’t stop before I went onto the crossing.” Plaintiff testified on cross-examination:
Three or four hundred feet behind plaintiff’s automobile at the time of the collision, and traveling in the same direction, was an automobile driven by B. J. Ledford. Between these two automobiles and traveling in the same direction was an automobile driven by a Mr. Venable, who was not a witness. Ledford testified in substance, except when quoted: He drove up to the crossing, radioed for an ambulance, and got out of his automobile. Plaintiff was in the street at the left front door of his automobile on his hands and knees. He lifted him up, and took him and set him down on the edge of the road. Plaintiff’s automobile was on the left-hand side of the shoulder of North-South Street just a few feet behind the cow catcher of the railway engine, and its left front door was open. “The debris was approximately right at the edge of the hard surface, right on the shoulder, his right front wheels. The debris was right on the track. I noticed skid marks from Mr. Ramey’s vehicle back just a few feet. I don’t remember exactly how many, where his wheels had skidded, and when he hit the train, it twisted his car around and brought him, the right side of it laying up against the train and the train entered onto the intersection and stopped at just about the edge of the hard surface on the other side. * * The automobile was on the road. No part of the automobile was off the road.” Ledford testified in part on cross-examination: “When I came to a stop and got out of the car just seconds after the wreck, the light was burning on the train. I didn’t see the light on the train as I approached the accident. The front end of the engine was on the left side of the shoulder of the road setting right on the shoulder. The bell was ringing when I stopped the car and got out.” In his opinion, it would be pretty hard 28 feet from the crossing to see a train east of the crossing for more than a short distance. The right front fender and wheel of plaintiff’s automobile and the left front of the engine collided.
Considering plaintiff’s evidence in the light most favorable to him, we are of opinion that his evidence makes out a
prima facie
case of actionable negligence on defendant’s part.
Jenkins v. R. R., supra; Carter v. R. R., supra; Johnson v. R. R.,
The crucial question for decision is whether plaintiff’s own evidence shows contributory negligence as a matter of law. The rule is firmly embedded in our adjective law to enter a judgment of nonsuit on the theory of contributory negligence when plaintiff’s own evidence, considered in the light most favorable to him, shows negligence on his part proximately contributing to his injury, so clearly that no other conclusion can be reasonably drawn therefrom.
Godwin v. R. R.,
A railroad grade crossing is in itself a warning of danger.
Bennett v. R. R.,
In Johnson v. R. R., supra, the Court said: “A traveler on a highway has the right to place some reliance upon an automatic crossing signal, especially if his view is obstructed. [Citing authority.] But the fact that an automatic warning signal is not working does not relieve the traveler of the duty to look and listen for approaching trains when from a safe position such looking and listening will suffice to warn him of danger.”
On plaintiff’s right as he approached the crossing was a bank that ended ten feet from the nearest rail of the railway tracks. For a distance of twelve to fifteen feet from where it ended, the bank was two feet high with undergrowth on it three to five feet high or higher. Twenty-two to twenty-five feet from the nearest rail, as plaintiff approached it, a train’s engine could be plainly seen, because it would be higher than a two-foot bank with undergrowth on it three to five feet high or higher. It would seem that farther back than twenty-two or twenty-five feet from the nearest rail of the tracks the railway engine could not be seen, as plaintiff approached the crossing. Plaintiff was thoroughly familiar with this crossing and its danger, because he had crossed it seven or eight times a day for the two or three years immediately prior to this occasion. With such knowledge he approached this crossing looking straight ahead, but neither to the left nor the right, to see if there was a flagman at the crossing and listening if he could hear the bell of a train ringing or its whistle blowing, and seeing no flagman and hearing no signals from a train, he continued to approach this crossing at such a speed that when he, about thirty feet
from the crossing, heard the brakes of the train, he could not stop his automobile but skidded onto the crossing and into the train’s engine. He testified: “I never saw the train at all.” The engine stopped on the crossing. If he had approached this crossing, which he well knew was a zone of danger, at such a speed that he could have stopped his automobile within twenty-two feet of the nearest rail of the tracks, from which distance
by merely looking to his right
he could have seen the approaching train’s engine, he could easily have avoided the collision and his resulting injuries. What
Higgins, J.,
said for a unanimous Court in affirming a judgment of compulsory nonsuit in
Northern Pacific R. Co. v. Freeman,
Johnson v. R. R., supra, is factually distinguishable. In that case Johnson stopped his pickup truck about 30 feet before reaching the railroad track and looked in both directions and listened.
No inflexible rule can be laid down as to what constitutes contributory negligence as a matter of law, as each case must be decided on its own facts. Plaintiff’s own evidence clearly shows that he failed to take proper care and precaution for his own safety, and hence it must be declared that, under established rules of law, he is guilty of contribu tory negligence as a matter of law. The judgment of compulsory non-suit below is
Affirmed.