Young v. Baltimore and Ohio Railroad Company
146 S.E.2d 441
N.C.
1966
Check Treatment
Lake, J.

DEPENDANT’S APPEAL

Since the accident out of which this action arose occurred in Ohio, the law of Ohio governs the rights and duties of the parties. Jones v. Elevator Co., 234 N.C. 512, 67 S.E. 2d 492; Russ v. R. R., 220 N.C. 715, 18 S.E. 2d 130. The law of North Carolina governs the procedure to be followed in the trial of the action in the courts of this State.

In passing upon a motion for judgment of nonsuit the plaintiff’s evidence must be taken to be true, must be interpreted in the light most favorable to the plaintiff and all reasonable inferences favorable to him must be drawn therefrom. Ammons v. Britt, 259 N.C. 740, 131 S.E. 2d 349; Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E. 2d 338.

The Supreme Court of Ohio has held in Capelle v. B & O Railway, 136 Oh. St. 203, 24 N.E. 2d 822, that a passenger in a motor vehicle which is driven into “the side of a train standing or moving over a grade crossing cannot in the absence of special circumstances rendering the crossing peculiarly hazardous” recover from the railroad for injuries received. In Reed v. Erie R. Co., 134 Oh. St. 31, 15 N.E. 2d 637, it was said that a railroad is not negligent by reason of its failure to light its train or to give a signal of its presence on the crossing because “when the train has arrived and is in occupation of the crossing, it affords an effective danger signal to approaching travelers.” This is the general rule in other jurisdictions, 44 Am. Jur., Railroads, § 501, and is in accord with the law of this State. See: Morris v. Railroad, 265 N.C. 537, 144 S.E. 2d 598.

Neither the plaintiff nor the defendant has cited to us any decision of the Ohio Court in the case in which an unlighted train, or *463 portion thereof, was left standing upon a crossing in such a way that it covered only a part of the crossing and we know of no such decision in Ohio. As to such a situation the decisions from other states are in conflict. In Peagler v. A.C.L. R. R. Co., 234 S.C. 140, 107 S.E. 2d 15, 84 A.L.R. 2d 794, the Supreme Court of South Carolina affirmed a judgment in favor of a motorist who collided in the nighttime with an empty, black flat car standing on a crossing, street lights and the headlights of an oncoming car on the opposite side of the crossing giving the driver the illusion of an open crossing. To the same effect are the decisions in Hawkins v. Missouri Pac. R. Co., 217 Ark. 42, 228 S.E. 2d 642; Ft. Worth & D.C. R. Co. v. Looney (Tex. Civ. App.), 241 S.W. 2d 322; Godwin v. Camp Mfg. Co., 183 Va. 528, 32 S.E. 2d 674. The contrary view is adopted in Allinson v. M.K.P. Railroad (Mo. App.), 347 S.W. 2d 902; Lowden v. Bowles, 188 Okla. 35, 105 P. 2d 1061.

In the present case the plaintiff’s evidence, taken in the light most favorable to him, is sufficient to support a finding that there was no light on the locomotive, that no signal or other indication of its presence upon the crossing was given and that it was unattended by a train crew. It did not extend all the way over the crossing but projected only about two-thirds of the way from the plaintiff’s right side of the crossing toward the center thereof. At the same time a stream of cars, with headlights shining, approached from the other side of the crossing and some of them proceeded over the crossing toward the vehicle in which the plaintiff was riding, their portion of the crossing not being obstructed. Under these circumstances, the driver of the vehicle in which the plaintiff was riding did not observe the unlighted locomotive partially blocking his half of the crossing until he was some 60 feet from it.

The steadily moving stream of traffic meeting the plaintiff’s ve-hide created an illusion of an open crossing.. This illusion was made possible by the act of the defendant in stopping its unlighted engine so that only a portion of the plaintiff’s half of the crossing was blocked. We think these were “special circumstances rendering the crossing peculiarly hazardous,” within the rule announced by the Ohio Court in the Capelle case, supra. While there is no indication in the record as to how long the unlighted locomotive had remained in this position, we think it a reasonable inference that it arrived upon the crossing only a short time before the collision, when it was dark and automobiles with headlights burning were moving upon the highway toward the crossing. Thus, the hazardous circumstances were, or should have been, known to the defendant. Under these conditions the rule of the Peagler case, supra, appears to us to be *464 sound and we have no reason to doubt that it states the rule which would be applied to such a situation by the Ohio Court.

The evidence was, therefore, sufficient to support a finding that the defendant was negligent in leaving its unlighted engine upon the crossing at this time and in this position.

Even if the driver of the tractor-trailer be deemed negligent under these circumstances, his negligence can not be imputed to the plaintiff under the law of Ohio. Parton v. Weilnau, 169 Oh. St. 145, 158 N.E. 2d 719. The defendant contends that West was so negligent and that his negligence intervened so as to insulate the negligence of the defendant, if any. A judgment of nonsuit on the ground of intervening negligence of a third person may be granted only when the evidence of the plaintiff permits no conclusion except that such third person was negligent and that his act or omission could not reasonably have been foreseen by the negligent defendant. Bryant v. Woodlief, 252 N.C. 488, 114 S.E. 2d 241; Moore v. Plymouth, 249 N.C. 423, 106 S.E. 2d 695. Here, the evidence does not compel such a conclusion and this question was properly submitted by the court to the jury for consideration in connection with the first issue.

Similarly, a nonsuit may be granted on the ground of the plaintiff’s own contributory negligence only when the evidence of the plaintiff admits of no other conclusion. Short v. Chapman, 261 N.C. 674, 136 S.E. 2d 40; Pruett v. Inman, 252 N.C. 520, 114 S.E. 2d 360. Here, the plaintiff was riding with a driver whom he knew to be well acquainted with this vicinity. In preparation for taking over the duties of driver, the plaintiff was in the process of putting on his boots and thus was leaning over and looking down. As soon as he saw the locomotive he cried out a warning. There is no evidence that he could have seen it sooner had he not been engaged in putting on his boots. This is not sufficient evidence of contributory negligence by the plaintiff to justify a judgment of nonsuit.

We, therefore, hold upon the defendant’s appeal that there was no error in the denial of its motion for judgment as of nonsuit.

Plaintiff’s Appeal.

The plaintiff’s assignments of error Nos. 1 and 2 relate to portions of the instructions of the court to the jury with reference to the first issue, including the doctrine of intervening negligence of the third party. Since the jury answered this issue in favor of. the plaintiff, it is not necessary for us to consider these assignments, for if there was error in these portions of the charge the plaintiff has not been prejudiced thereby. As was said by Moore, J., in Fleming v. Drye, 253 N.C. 545, 549, 117 S.E. 2d 416:

*465 “Error in a charge on an issue is harmless if the jury answers the issue in favor of the appellant. Lookabill v. Regan, 247 N.C. 199, 202, 100 S.E. 2d 521; Scenic Stages v. Lowther, 233 N.C. 555, 557, 64 S.E. 2d 846. We do not indulge the presumption that the jury applied the questioned instructions to issues other than those directed by the court.”

Upon the issue of damages, the court charged as follows:

“Upon this second question relating to personal injury, the rule is that where a person is entitled to recover for personal injuries, he is entitled to recover one compensation in a lump sum for all injuries, past, present and future, that you find to be the direct, natural and proximate result of any negligent conduct on the part of the defendant.” [Emphasis ours.]

This phrase, “proximate result of any negligent conduct on the part of the defendant,” was repeated on three other occasions in the charge relating to the issue of damages and there was no qualifying or explanatory language in the charge.

In connection with the first issue, the court charged the jury as to the law of intervening negligence. In answering the first issue in favor of the plaintiff, the jury obviously rejected the defendant’s contention that the negligence, if any, of the driver, West, was an intervening, insulating cause. However, we cannot determine from its verdict whether the jury found that West was not negligent or believed that West was negligent but his negligence was a concurring, not an intervening, and, therefore, not an insulating, cause of the plaintiff’s injuries.

“The mere fact that another is also negligent and the negligence of the two results in injury to the plaintiff does not'relieve either.” Green v. Tile Co., 263 N.C. 503, 139 S.E. 2d 538; Jones v. Horton, 264 N.C. 549, 554, 142 S.E. 2d 351. This Court has said many times: “There may be two or more proximate causes of an injury. These may originate from separate and distinct sources or agencies operating independently of each other, yet if they join and concur in producing the result complained of, the author of each cause would be liable for the damages inflicted, and action may be brought against any one or all as joint tort-feasors.” Barber v. Wooten, 234 N.C. 107, 66 S.E. 2d 690. See also: Rouse v. Jones, 254 N.C. 575, 119 S.E. 2d 628; Tillman v. Bellamy, 242 N.C. 201, 87 S.E. 2d 253.

The learned judge below evidently overlooked the possibility that the jury might answer the first issue in the plaintiff’s favor and nevertheless believe that there was negligence on the part of West. His instruction that they were to answer the second issue in an *466 amount which would compensate for the injuries which were the result of “negligent conduct on the part of the defendant” may well have misled the jury. They may have understood from the instruction that they were to distinguish between damages for injuries caused by the negligence of the defendant and those caused by the negligence of West, if any. Thus, they may have answered this issue in an amount less than they would have found had they understood that they were to return a verdict in an amount which would compensate the plaintiff for all of his injuries resulting from the collision.

The court also instructed the jury upon this issue with reference to his medical expenses as follows:

“In this case the things you may consider in determining what amount you will award to the plaintiff, if you award him anything, are actual monetary losses he has had from medical expenses * * [Emphasis ours.]

There was testimony that the plaintiff’s medical expenses had been paid by his employer as the result of hospital insurance carried for the benefit of its employees. In the light of this testimony, the foregoing charge may well have led the jury to believe that no amount was to be included in its verdict on account of medical expenses unless paid by the plaintiff himself.

The correct rule is stated in 22 Am. Jur. 2d, Damages, § 207, as follows:

“[T]he plaintiff’s recovery will not be reduced by the fact that the medical expenses were paid by some source collateral to the defendant, such as by a beneficial society, by members of the plaintiff’s family, by the plaintiff’s employer, or by an insurance company.”

In Roth v. Chatlos, 97 Conn. 282, 116 Atl. 332, 22 A.L.R. 1554, it is said:

“The majority rule of the cases is that an injured person is entitled to recover as damages for reasonable medical, hospital, or nursing services rendered him, whether these are rendered him gratuitously or paid for by his employer.”

As to the effect of payment for such services by the employer where the Workmen’s Compensation Act applies, see: G.S. 97-10.2(e).

The opinion in Tart v. Register, 257 N.C. 161, 125 S.E. 2d 754, expressly states that the decision there is limited to the situation in which the plaintiff seeks double recovery for medical expenses, *467 first on the ground, of the defendant’s liability for negligence, and second on the ground that the defendant’s automobile liability insurance policy also provides medical payments coverage. Our decision there does not prevent recovery for medical expenses actually incurred by or for an injured person on the ground that his employer has paid or provided for the payment of those expenses.

These inadvertent errors in the instructions upon the issues of damages were substantially prejudicial to the plaintiff and he is entitled to a new trial.

As to the defendant’s appeal: Affirmed.

As to the plaintiff’s appeal: New trial.