Melvin T. MAY, Administrator of the Estate of Eva Rebecca May Butner, Deceased,
v.
SOUTHERN RAILWAY COMPANY, W. B. Stanley, Clarence C. Kingsbury, J. M. Forrester, G. S. Stafford and J. W. Scott.
No. 594.
Supreme Court of North Carolina.
March 6, 1963.*627 Frazier & Frazier, by H. Vernon Hart, Greensboro, for plaintiff appellant.
McLendon, Brim, Holderness & Brooks, Greensboro, for defendant appellees.
SHARP, Justice.
The jury having answered the issue of contributory negligence against the plaintiff, the defendants are entitled to a judgment unless there is error in the trial below entitling the plaintiff to a venire de novo. Bullard v. Ross, 205 N.C. 495, 171 S.E. 789.
There is error in the charge on the fourth issue which, nothing else appearing, would entitle the plaintiff to a new trial. His Honor, in effect, charged the jury that if Mrs. Butner approached the crossing at a speed so great she could not stop her automobile within the range of her headlights, she would be guilty of negligence per se. There was no evidence that she was exceeding the maximum speed prescribed by G.S. § 20-141(b). Therefore, such speed would not have been negligence per se but only evidence to be considered along with the other facts in the case in determining whether she was guilty of contributory negligence. Chapter 1145, Session Laws of 1953.
However, to award plaintiff a new trial now would be a Pyrrhic victory. There was no error in the trial with reference to the first two issues and the plaintiff has assigned none. The judge correctly instructed the jury on the duty of the train crew to give reasonable and timely warning *628 before backing an unlighted boxcar across a highway at night, and he thoroughly reviewed all the contentions of the plaintiff. Nevertheless, the jury exonerated the employees remaining in the case of any negligence.
When the servant is the actor, the employer cannot be called upon to respond in damages for his act which was not wrongfully or negligently committed. Morrow v. Southern R. R. Co., 213 N.C. 127, 195 S.E. 383. When the master must be held, if at all, under the doctrine of respondeat superior, a verdict and judgment against plaintiff on the issue of negligence in an action against the servant bars a later action by the same plaintiff against the master. Leary v. Virginia-Carolina etc. Land Bank, 215 N.C. 501, 2 S.E.2d 570; Pinnix v. Griffin, 221 N.C. 348, 20 S.E.2d 366, 141 A.L.R. 1164.
In this case the judge charged the jury that if they answered either of the first two issues YES they would answer the third issue YES, but if they answered the first two issues NO they would still consider the third issue because "a railway company is required to use due care in maintaining its right of way so as not to obstruct the vision of persons approaching on a public street." Under this instruction the jury answered the third issue YES.
Since the judgment below was in favor of the defendant Railway Company it did not appeal. Hence the propriety of this instruction as such is not presented on this record and is not before us for consideration. Jeffreys v. Burlington, 256 N.C. 222, 123 S.E.2d 500. It is noted, however, that there was no evidence that the vegetation complained of was on the Railroad's right of way. Vegetation along the side of the public road is not chargeable to the Railroad but, if such growth obscures the view of those approaching the track, it becomes the duty of the Railroad to use means commensurate with the danger created by that growth to warn the public of an approaching train. 74 C.J.S. Railroads § 722.
However, with the members of the train crew exonerated of any negligence, this question arises: Does the complaint allege any facts upon which the Railroad may now be held independently liable? The answer is NO.
The substance of the allegations of the complaint with reference to the obstructions at the crossing are set out in the statement of facts. The purpose of these allegations was to establish the duty which the train crew owed intestate to warn her of the approaching train. If obstructions made a blind crossing, they were a vital factor in determining the duty which defendants owed her as well as in determining whether intestate herself was guilty of contributory negligence in going upon the tracks. However, "(o)bstructions in themselves have never been considered negligent, * * * but if they exist, and the railroad is aware of them, it is then incumbent on the railroad to take proper precautions to protect travelers who use the crossing and to warn them of the approach of trains." Parrish v. Atlantic Coast Line R. R. Co., 221 N.C. 292, 20 S.E.2d 299; Coltrain v. Atlantic Coast Line R. R. Co., 216 N.C. 263, 4 S.E.2d 853.
Permitting such obstacles on the right of way and near the crossing would not in itself constitute actionable negligence, and independently would not give rise to a cause of action. Childress v. Lake Erie & W. R. Co., 182 Ind. 251, 105 N.E. 467. The cause of action depends upon whether or not the train crew gave the warning and took the precautions which an unusually dangerous crossing required. In this case the jury has said that they did.
When the complaint fails to state a cause of action, a defect appears upon the face of the record proper. On appeal, the Supreme Court will take notice of it *629 and will ex mero motu dismiss the action. Maola Ice Cream Co. v. Maola Milk & Ice Cream Co., 238 N.C. 317, 77 S.E.2d 910; Fuquay Springs v. Rowland, 239 N.C. 299, 79 S.E.2d 774; Skinner v. Empresa Transformadora De Productos Agropecuarios, S.A., 252 N.C. 320, 113 S.E.2d 717.
This action is remanded to the Superior Court of Guilford County with instructions to enter a judgment on the first two issues decreeing that the plaintiff recover nothing of the individual defendants and dismissing the action against the Southern Railway Company.
Error and remanded.