Lamm v. Atlantic Coast Line Railroad, 213 N.C. 216 (1938)

March 2, 1938 · Supreme Court of North Carolina

213 N.C. 216

W. T. LAMM v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 2 March, 1938.)

Railroads § 9 — Evidence held to disclose contributory negligence barring recovery for truck demolished in crossing accident.

Evidence that the driver of a truck saw defendant’s train approaching, thought he could get across before the train got to the crossing, and that the train hit the rear wheels of the truck as it was crossing the second track, is held to disclose contributory negligence barring recovery for the destruction of the truck, as a matter of law, even though it be conceded that the train was being negligently operated at an excessive speed.

Appeal by plaintiff from Bone, J., at November Term, 1937, of "WilsoN. Affirmed.

W. A. Lucas for plaintiff, appellant.

F. S. Spruill and Finch, Rand & Finch for defendant, appellee.

Per Curiam.

This was an action to recover damages for the alleged negligent destruction of a truck.

The plaintiff’s evidence was to the effect that the agent and servant of the plaintiff was driving plaintiff’s truck on Green Street in the town of "Wilson; that said Green Street crosses the double tracks of the defendant railroad company; that as the driver of the truck attempted to drive the truck across said tracks the truck was struck by the engine of a through passenger train of the defendant and demolished; that said train was being operated at a speed of from 60 to 70 miles per hour, in violation of an ordinance of the town of Wilson which provided that it should be unlawful to operate a railroad train through said town at a greater rate of speed than 25 miles per hour. The plaintiff’s evidence was further to the effect that the driver of the truck stopped the truck as he approached the tracks of the defendant in five or six feet of the first track; that the driver’s view of the track was unobstructed and that he looked and saw the train approaching at a distance of three-fourths of a mile north of the Green Street and track crossing, and remarked that “he thought he could make it and started the truck across the track, and while the truck was crossing the second track it was struck about the rear wheels by the train.”

At the close of the plaintiff’s evidence, the court allowed defendant’s motion for judgment as in case of nonsuit, and the plaintiff reserved exception and appealed.

In'allowing the motion for nonsuit we see no error. While it will be conceded that there is sufficient evidence of actionable negligence of tbe defendant to carry tbe case to tbe jury, tbe plaintiff’s own evidence proves bim out of court on tbe issue of contributory negligence. Harrison v. R. R., 194 N. C., 656.

“Tbe universal rule (is) tbat a person wbo enters on a railway track in front of a train he knows to be approaching is guilty of such negligence tbat be cannot recover for injuries sustained.” Royster v. R. R., 147 N. C., 347, and cases there cited.

Since tbe driver’s view of tbe track to tbe north, tbe direction from wbicb tbe train was approaching, was unobstructed for at least three-fourths of a mile, be was guilty of contributory negligence in entering upon tbe track in front of an approaching train. Kuykendall v. R. R., 208 N. C., 840.

Tbe judgment of tbe Superior Court is

Affirmed.