Costin v. Tidewater Power Co.

AlleN, J.

The exceptions chiefly relied on by the defendant is to the refusal to enter judgment of nonsuit, the defendant insisting that there ■'is no evidence of negligence, and that upon the whole evidence plaintiff ■was guilty of contributory negligence.

The principles determinative of the questions raised by this exception •are so well settled, and they have been discussed so recently in several •cases, that it is only necessary to state them.

*202It was tbe duty of tbe defendant as it approached tbe crossing to give such,signal as would be reasonably sufficient to warn persons on the-public road, which crossed the track, of the coming of the car by ringing the bell or blowing the whistle, or both if necessary, and the failure to> give such signal would be evidence of negligence, and this duty was more-insistent because the view of the motorman and of the plaintiff was obstructed by the ice house or freight station.

It was also the duty of the defendant, after the truck stopped on the-track, if a collision was probable, to stop its car, if it could do so by theexercise of ordinary care in time to avoid striking the truck.

If it failed to perform either duty it was negligence, and if there is, evidence that such failure of duty was the proximate cause of the injury,, the action can be maintained. Bagwell v. R. R., 167 N. C., 615; Norman v. R. R., 167 N. C., 533; Goff v. R. R., 179 N. C., 219, and Perry v. R. R., 180 N. C., 290.

Is there evidence that the defendant did not give notice of the approach of the car to the crossing, or that the truck stopped on the track,, and that by the exercise of ordinary care the defendant could havediscovered the danger of a collision in time to stop and avoid the injury?'

The plaintiff testified that as he was approaching the track he was; listening, and that he heard no signal from the approaching train, and there was other evidence to the same effect.

He also testified that the truck stopped when it reached the track;that the head of the truck could have been seen by the motorman when lie was forty feet from the crossing; that he himself saw the car when it was twenty-five feet from the crossing, and that the truck had then, stopped.

The -witness Larsen evidently saw that a collision was imminent, because when he saw the truck approaching the crossing and the car-coming, he got in the middle of the track, threw up his hands and called' out three times to attract the attention of the motorman, and that when he first saw the car and thjrew up his hand the car was about the curve, one hundred and fifty or two hundred feet from the crossing. He also states that the motorman saw him.

The witness Gillette testified that at a point about eleven feet fromi the track you could see up the track in the direction the car was coming about two Hundred feet.

The motorman testified that when he applied his brakes he stopped the car in eighteen or twenty feet.

Upon this evidence the jury could well find that no signal of theapproach to the crossing was given; that the car which was runningat eight or ten miles an hour could have been stopped in eighteen ortwenty feet; that the motorman was put on notice by Larsen when one; *203hundred and fifty or two hundred feet away that there was some danger at the crossing; that in any event the motorman could have seen the truck as it approached the crossing when forty feet away, and that he could have seen the truck after it stopped on the track twenty-five feet away, and that the car could have been stopped in eighteen or twenty feet, and if so, there was evidence to support the contention of the plaintiff that the defendant was negligent in failing to give the proper signals, and also that it could have discovered the dangerous position of the plaintiff after the car stopped in time to stop its car and avoid injury to the plaintiff.

It was also a reasonable inference to be drawn from the evidence that if the whistle had been blown it would have been heard and the truck would have stopped before it reached the track of the defendant, and that the real and proximate cause of the injury was the failure to" give the signal or the failure to stop after the dangerous position of the plaintiff could have been discovered.

It was also the duty of the plaintiff to exercise ordinary care as he approached the crossing, and to use his sense of sight and hearing to the best of his ability under the surrounding circumstances, but as his view was obstructed by the ice house, which was in part on the right of way of the defendant, and a part of it used by the defendant, if the defendant failed to warn him of the approach of its train and to give the proper signals as its car approached the crossing, and induced by this failure of duty the truck approached the crossing and was struck and the plaintiff injured, he having used his faculties as best he could under the circumstances to ascertain if there was any danger ahead, negligence will not be imputed to him, but to the defendant, the failure to warn him being regarded as the proximate cause of any injury he received. Johnson v. R. R., 163 N. C., 443, approved in Goff v. R. R., 179 N. C., 220.

The plaintiff testified that after he reached Seagate he found a truck standing twenty-three feet from the track, which he recognized as one used on his farm, which was within a short distance of the station; that he inquired for the driver of the truck and found that he was at a cold drink stand about fifty feet from the track; that he went to the drink stand and found the driver, who said he would take him to his farm on the truck; that he then started towards the truck; that upon leaving the cold drink stand he could see down the track towards the branch; that he looked down the track at that time and saw nothing; that as he was going towards the track he looked two or three times and saw no car, nor did he hear any whistle blow; that he got on the truck, but that his view was then obstructed by the ice house; that as the driver walked around to crank the truck he looked and listened, and that he heard no *204■car whistle, nor did he hear the roar of the car; that he looked down the track just before going behind the building going to the truck; that the truck started, and it proceeded to cross the track slowly and in low •gear, and as it reached the track it stopped.

If this evidence is true, and its credibility was for the jury, the plaintiff was doing all that he could under the circumstances for his own safety, and it cannot be declared as matter of law that he was guilty of contributory negligence.

The exception to the expression of opinion by the witness Larsen that if the motorman had applied his brakes to the car at the moment when he saw your signal or the moment you threw up your hand, that the car could have been stopped before it reached the crossing, is without merit.

According to the evidence, the car was one hundred and fifty or two hundred feet from the crossing when Larsen first threw up his hand, and the motorman practically admits that he could at that time have stopped the car in time to avoid the injury, so that the evidence was about a matter that was really not in dispute.

If, however, it was otherwise, it has been held that one who is not an'expert and knows of the conditions, may express an opinion of the distance in which a car can be stopped, and indeed that the jury may form its own opinion from the evidence. Deans v. R. R., 107 N. C., 686.

We have examined the parts of the charge excepted to, and find that they conform to the opinions of this Court.

No error.