| N.C. | Sep 18, 1929
Action to recover damages resulting from injuries to plaintiff's automobile, caused by the negligence of defendant in failing to exercise due care (1) to maintain a public crossing which passes over its track, in a reasonably safe condition, and (2) to stop its train before it struck and *430 injured the automobile, which by reason of the defective condition of said crossing, plaintiff was unable to drive off or move from said track, in time to avoid the injury.
The issues submitted to the jury were answered as follows:
1. Was the plaintiff's property damaged by the negligence of the defendant, as alleged? Answer: Yes.
2. If so, did plaintiff by his own negligence contribute to his injury and damage? Answer: No.
3. What damages, if any, is plaintiff entitled to recover? Answer: $1,500.
From judgment on the verdict defendant appealed to the Supreme Court. It is not contended by defendant on this appeal that there was error in the trial of this action with respect to the allegation that defendant was negligent in failing to exercise due care to stop its train, and thus avoid the injury to plaintiff's automobile, which was on defendant's track when it was struck and injured by defendant's train. The evidence in support of this allegation, although contradicted by evidence offered by defendant, was submitted to the jury under instructions which are free from error. Assignments of error based on exceptions to these instructions are not discussed in defendant's brief, filed in this Court. They are therefore taken as abandoned on this appeal. Rule 28.
Defendant contends, however, that there was error in the trial with respect to the allegation that defendant was negligent in failing to exercise due care to maintain in a reasonably safe condition the crossing over its track, on which the automobile was standing when it was struck and injured by defendant's train. All the evidence tended to show that the crossing was defective, in that there was a hole on the right of way, just beyond the cross-ties, and that this hole was not discovered by plaintiff before the wheel of his automobile dropped into it, causing the runningboard of his automobile to rest upon the ground. Plaintiff was unable to drive his automobile off the track, or to move it therefrom before it was struck and injured by defendant's train, which appeared after plaintiff had driven upon the crossing.
In his complaint plaintiff alleged that the crossing was a public crossing. This allegation was denied by defendant in its answer. All the evidence tended to show that the crossing had been in existence for many years; that it was used generally by the public, and that defendant *431 knew of its existence. There was no evidence tending to contradict the evidence to the effect that it was a public crossing. Plaintiff knew when he drove his automobile on the crossing that it had been used for many years by the public for the purpose of passing over defendant's track, from the public road on one side of the track to the State highway on the other side.
The court instructed the jury in effect that upon all the evidence it was the duty of defendant to exercise due care to maintain the crossing on which plaintiff's automobile was standing when it was struck and injured by defendant's train in a reasonably safe condition, and that if defendant failed to perform this duty, and such failure was the proximate cause of the injuries to plaintiff's automobile, defendant was liable for damages resulting from the injuries.
Defendant contends that there was prejudicial error in this instruction, for that it is assumed therein that the crossing on which plaintiff's automobile was standing when it was struck and injured, is a public crossing, whereas the allegation in the complaint to that effect is denied in the answer. In view of the fact that all the evidence was to the effect that the crossing is a public crossing, and that on the trial defendant did not controvert this evidence, defendant's contention cannot be sustained. Defendant's evidence was directed altogether to support its contention that it was not negligent in failing to stop its train before it struck and injured the automobile. There was apparently no controversy as to the character of the crossing, or as to its defective condition.
The duty of a railroad company with respect to the maintenance of a crossing over its track, where its track has been constructed over an established road or highway, whether public or private, is well settled. The duty is prescribed by statute, C. S., 3449, and has been recognized and enforced by this Court in numerous decisions. In Goforth v. R. R.,
It is immaterial whether the company constructed the crossing or not. If, with its knowledge and implied consent, the public has used the crossing over its track and right of way for many years, for the purpose of passing from a public road on one side of the track to a public road on the other side, in automobiles or other vehicles, the company owes to those who thus use the crossing the duty to exercise due care to maintain the crossing in a reasonably safe condition. Bradley v. R. R.,
No error.