Greeley B. CARTER
v.
ATLANTIC COAST LINE RAILROAD COMPANY.
No. 170.
Supreme Court of North Carolina.
March 21, 1962.*562 S. Bunn Frink, Southport, Elbert A. Brown, Isaac C. Wright, by I. C. Wright, Wilmington, for plaintiff appellant.
Poisson, Marshall, Barnhill & Williams, by M. V. Barnhill, Jr., Wilmington, for defendant appellee.
HIGGINS, Justice.
The trial judge did not assign the legal ground upon which he based the nonsuit. The judgment must be sustained if the evidence fails to show the defendant's negligence. Conversely, it must be sustained if the evidence does show plaintiff's contributory negligence as a matter of law.
The evidence of negligence on the part of the railroad leaves us with disturbing doubts as to its sufficiency to make out a case. The plaintiff did not hear any signal of the train's approach. However, he did not remember whether his windows were up or down. There is evidence of a partial obstruction of a traveler's view of the track on which the train approached. There is, however, no evidence the obstruction was on the defendant's right of way. The plaintiff testified the train crew did not give any warning signal. Fully realizing the evidence presents a fringe case on the first issue, we resolve the doubts in plaintiff's favor. Jarrett v. Southern R. R. Co., 254 N.C. 493, 119 S.E.2d 383; Coltrain v. Atlantic Coast Line R. R. Co., 216 N.C. 263, 4 S.E.2d 853; Harris v. Black Mountain R. R. Co., 199 N.C. 798, 156 S.E. 102; Collett v. Southern R. R. Co., 198 N.C. 760, 153 S.E. 405; Johnson v. *563 Seaboard Air Line R. R. Co., 163 N.C. 431, 79 S.E. 690.
While the plaintiff's evidence leaves the question of defendant's negligence in the twilight, we think his contributory negligence appears in full daylight. He lived in the vicinity and was familiar with the crossing and its surroundings. Yet, with this full knowledge, he failed to stop, but proceeded toward the crossing until he became aware of the train's approach, suddenly applied his brakes, and skidded on to the track in front of the train. He failed to use his faculties but trusted to luck which, as sometimes happens, turned out to be bad. According to his admission, he saw the train, or, as he said, he became aware of its approach when it was 30 feet from the crossing. But his speed and his failure to stop had placed him in the danger zone from which he could not extricate himself. "It does not suffice to say that the traveler * * * stopped, looked and listened; the looking and listening must be timely, so that the precaution may be effective." Johnson v. Southern R. R. Co., 255 N.C. 386, 121 S.E.2d 580.
The plaintiff in this case did not stop as in Johnson v. Southern R. R. Co., 255 N.C. 386, 121 S.E.2d 580, or as in Jarrett v. Southern R. R. Co., supra. There was no evidence that the train was speeding as in those cases. "In the instant case plaintiff knew that he was approaching a railroad, and he knew he was entering a zone of danger. He was required before entering upon the track to look and listen and to ascertain whether a train was approaching." Irby v. Southern R. R. Co., 246 N.C. 384, 98 S.E.2d 349, 70 A.L.R. 2d 1; Arvin v. McClintock, 253 N.C. 679, 118 S.E.2d 129; Beaman v. Southern R. R. Co., 238 N.C. 418, 78 S.E.2d 182; Jones v. Atlantic Coast Line R. R. Co., 235 N.C. 640, 70 S.E.2d 669; Parker v. Atlantic Coast Line R. R. Co., 232 N.C. 472, 61 S.E.2d 370; Dowdy v. Southern R. R. Co., 237 N.C. 519, 75 S.E.2d 639; Penland v. Southern R. R. Co., 228 N.C. 528, 46 S.E.2d 303; Jeffries v. Powell, 221 N.C. 415, 20 S.E.2d 561.
The foregoing cases are authority for compulsory nonsuit on the basis of plaintiff's contributory negligence. The judgment entered in the Superior Court of New Hanover County is
Affirmed.
SHARP, J., took no part in the consideration or decision of this case.