SOUTHERN RAILWAY COMPANY
v.
AKERS MOTOR LINES, Inc., and W. P. Ellis.
No. 173.
Supreme Court of North Carolina.
October 12, 1955.*393 W. T. Joyner, Raleigh, James Mullen, Mason & Mason, Gastonia, for plaintiff appellant.
Jones & Small, Charlotte, L. B. Hollowell, and Basil Whitener, Gastonia, for defendant appellees.
BARNHILL, Chief Justice.
The history of the occurrence which is the subject matter of this action is graphically stated by Ellis himself as follows:
"I was doing 35 to 40 miles per hour as I approached the bottom of the incline leading to the crossing, but I started slowing down as I approached the crossing. * * * As I completed the rise and approached closer to the crossing, I started to slow up. I looked to the left toward Henderson and did not see any train or hear any whistle. I then looked to the right and did not see any train or hear any whistle.
"When I finished looking and listening I was less than 100 feet from the track. I proceeded forward, put my foot on the accelerator to go ahead and cross the tracks, and I looked and saw this train coming out from behind the trees and billboard and hit my tractor. * * * I did not see any train until I was less than 100 feet from the crossing. At that time I was doing about 20 miles per hour. When I saw the train, I had my foot on the gas, and I looked and saw this train right on me. I did not have time to stop, *394 so I just kept mashing the gas and thought maybe I would beat him across. I could not have stopped my tractortrailer after the train came out from behind the trees. * * *"
"I had crossed this crossing four to six times a week and saw the tracks every time. At a point 100 feet away from the crossing you can see about 100 feet up the railroad. * * * I was not less than 100 feet from the track when I looked to the left and then to the right and didn't see any train. * * * At that time I was maybe 150 to 200 feet away. Seeing nothing, I stepped on the accelerator and picked up a little bit of speed. I arrived at the crossing at about 20 miles per hour. * * * When I first saw the train, I couldn't stop the tractor. I would say I was 25 or 30 feet from the track. It takes about 150 feet to stop the tractor and trailer at 20 miles an hour with good condition. * * * The first time I saw the train was right there just before it hit my tractor."
Thus it appears from the evidence offered by the defendants that Ellis was thoroughly familiar with the crossing at which the accident occurred. He had used the crossing four to six times per week over a period of two years. He knew that if he looked to the north within approximately 100 feet of the track he could see a train approaching 100 feet up the track. Yet he looked first at a time when he says he could not see and then looked no more until he was within 30 or 35 feet of the track. He knew he was approaching a zone of danger. Yet he failed to look until it was too late for him to stop before reaching the crossing. Likewise, when he looked the second time and saw the train approaching, he had failed to bring his vehicle under such control that he could stop it before reaching the zone of danger. Instead, he stepped on the accelerator and attempted to "beat him across."
Thus it clearly appears that his conduct constitutes contributory negligence as a matter of law, and decision on the motion of plaintiff for judgment of nonsuit on the cross actions of the defendants is controlled by Parker v. Atlantic Coast Line R. Co., 232 N.C. 472, 61 S.E.2d 370, 371, and the cases there cited.
It does not suffice to say that Ellis looked and listened. "His looking and listening must be timely, McCrimmon v. Powell, supra [221 N.C. 216, 19 S.E.2d 880], so that his precaution will be effective. Godwin v. Atlantic Coast Line R. Co., supra [220 N.C. 281, 17 S.E.2d 137]. It was his duty to `look attentively, up and down the track,' in time to save himself, if opportunity to do so was available to him. [Citing authorities.] Here the conditions were such that by diligent use of his senses he could have avoided the collision. His failure to do so bars his right to recover. Godwin v. Atlantic Coast Line R. Co., supra." Parker v. Atlantic Coast Line R. Co., supra.
His negligence likewise bars the right of the corporate defendant to recover damages to its tractor-trailer.
It follows that there was error in the ruling of the court denying plaintiff's motion to dismiss the cross actions as in case of involuntary nonsuit.
The defendants relied upon the failure of plaintiff to maintain gates or gongs or other like signaling devices at the crossing as evidence of its negligence. The court instructed the jury as to defendants' contentions in respect thereto and undertook to state the applicable law. This must be held for reversible error committed on the first issue as to the negligence of the defendants for the reason the court overlooked and failed to make reference to the provisions of G.S. § 136-20. By the enactment of this section of the Code the Legislature has taken from the railroads authority to erect gates or gongs or other like signaling devices at railroad crossings at will and has vested exclusive discretionary authority in the State Highway and Public Works Commission to determine when and under what conditions such signaling *395 devices are to be erected and maintained by railroad companies. This section works such a radical change in the law in this respect that we are constrained to quote the material portion of the statute in full. It is as follows:
"(a) Whenever any road or street forming a link in or a part of the State highway system, whether under construction or heretofore or hereafter constructed, shall cross or intersect any railroad at the same level or grade, or by an underpass or overpass, and in the opinion of the chairman of the State Highway and Public Works Commission such crossing is dangerous to the traveling public, or unreasonably interferes with or impedes traffic on said State highway, the Commission shall issue notice requiring the person or company operating such railroad to appear before the Commission * * * and show cause, if any it has, why such railroad company shall not be required to alter such crossing in such way as to remove such dangerous condition and to make such changes and improvements thereat as will safeguard and secure the safety and convenience of the traveling public thereafter. * * *
"(b) Upon the day named, the Commission shall hear said matter and shall determine whether such crossing is dangerous to public safety, or unreasonably interferes with traffic thereon. If it shall determine that said crossing is, or upon the completion of such highway will be, dangerous to public safety and its elimination or safeguarding is necessary for the proper protection of the traffic on said State highway, the Commission shall thereupon order the construction of an adequate underpass or overpass at said crossing or it may in its discretion order said railroad company to install and maintain gates, alarm signals or other approved safety devices if and when in the opinion of said Commission upon the hearing as aforesaid the public safety and convenience will be secured thereby. * * *
"(f) The jurisdiction over and control of said grade crossings and safety devices upon the State highway system herein given the Commission shall be exclusive." (Italics supplied.)
The court likewise erred in permitting the defendants to introduce evidence with reference to the location of other crossings in and around Henderson and the protective devices maintained thereat.
Where evidence of conditions is offered to prove a habit or custom under such conditions, the circumstances of the conditions must not be so dissimilar that the evidence is without probative value. Stansbury, N.C. Evidence, 168, sec. 89. II Wigmore on Evidence, 316, sec. 379, states the principle as follows: "* * * it is obvious that there must be such a similarity or unity of conditions that what is done by one or more persons or sets of persons may be taken as indicating the probable general habit of the class of persons under similar circumstances." (Italics supplied.)
It is true that other conditions or events can be used, within limits, to show a standard of care under which it is claimed a party ought to have conformed but did not. But there must be more substantial similarity than exists in this case.
The intersections about which evidence was offered were within the bounds of the City of Henderson where noises and diversions exist, traffic is congested, and trains move frequently. Here the intersection is in the rural portion of the county, and only one train passes the crossing daily.
On plaintiff's cause of action there must be a new trial. The judgment entered on the cross actions of the defendants must be reversed.
On plaintiff's cause of action
New trial.
On defendants' causes of action Reversed.
WINBORNE and HIGGINS, JJ., took no part in the consideration or decision of this case.