Murray v. Atlantic Coast Line Railroad

218 N.C. 392

• Court: Supreme Court of North Carolina
• Decided: November 7, 1940
• Status: Published

Opinions

WiNBORNE, J.

When considered in tbe light most favorable to plaintiff, we are of opinion that as to tbe defendant Eailroad Company tbe evidence is insufficient to require that an issue of negligence be submitted to tbe jury. Harton v. Telephone Co., 146 N. C., 430, 59 S. E., 1022; Lineberry v. R. R., 187 N. C., 786, 123 S. E., 1; Thompson v. R. R., 195 N. C., 663, 143 S. E., 186; Craver v. Cotton Mills, 196 N. C., 330, 145 S. E., 570; Boyd v. R. R., 200 N. C., 324, 156 S. E., 507; Hinnant v. R. R., 202 N. C., 489, 163 S. E., 555; Baker v. R. R., 205 N. C., 329, 171 S. E., 342; Newell v. Darnell, 209 N. C., 254, 183 S. E., 374; Smith v. Sink, 211 N. C., 725, 192 S. E., 108; Powers v. Sternberg, 213 N. C., 41, 195 S. E., 88; Butner v. Spease, 217 N. C., 82, 6 S. E. (2d), 808.

In an action for tbe recovery of damages for injuries allegedly resulting from actionable negligence, “Tbe plaintiff must show: First that there has been a failure to exercise proper care in tbe performance of some legal duty which tbe defendant owed tbe plaintiff, under tbe circumstances in which they were placed; and, second, that such negligent breach of duty was tbe proximate cause of tbe injury — a cause that produced tbe result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under all tbe facts as they existed.” Whitt v. Rand, 187 N. C., 805, 123 S. E., 84; Evans v. Con struction Co., 194 N. C., 31, 138 S. E., 411; Hurt v. Power Co., 194 N. C., 696, 140 S. E., 730; Thompson v. R. R., 195 N. C., 663, 143 S. E., 186; Templeton v. Kelley, 215 N. C., 577, 2 S. E. (2d), 696; Gold v. Kiker, 216 N. C., 511, 5 S. E. (2d), 548.

The principle prevails in this State that what is negligence is a question of law, and, when the facts are admitted or established, the court must say whether it does or does not exist. “This rule extends and applies not only to the question of the negligent breach of duty, but also to the feature of proximate cause.” Hicks v. Mfg. Co., 138 N. C., 319, 50 S. E., 703; Russell v. R. R., 118 N. C., 1098, 24 S. E., 512; Lineberry v. R. R., supra,; Clinard v. Electric Co., 192 N. C., 736, 136 S. E., 1.

In Lineberry v. R. R., supra, Clarkson, J., said: “It is well settled that where the facts are all admitted, and only one inference may be drawn from them, the court will declare whether an act was the proximate cause of the injury or not.” Again in Russell v. R. R., supra, it is stated that “Where the facts are undisputed and but a single inference can be drawn from them, it is the exclusive duty of the court to determine whether an injury has been caused by the negligence of one or the concurrent negligence of both of the parties.”

Furthermore, it is proper in negligence cases to sustain a demurrer to the evidence and enter judgment as of nonsuit, “1. When all the evidence, taken in the light most favorable for the plaintiff, fails to show any actionable negligence on the part of the defendant ... 2. When it clearly appears from the evidence that the injury complained of was independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person . . .” Smith v. Sink, supra, and cases cited. See, also, Boyd v. R. R., supra; Powers v. Sternberg, supra; and Butner v. Spease, supra.

“Foreseeability is the test of whether the intervening act is such a new, independent and efficient cause as to insulate the original negligent act. That is to say, if the original wrongdoer could reasonably foresee the intervening act and resultant injury, then the sequence of events is not broken by a new and independent cause, and in such event the original wrongdoer remains liable.” Brogden, J., in Hinnant v. R. R., supra; Harton v. Telephone Co., supra; Herman v. R. R., 197 N. C., 718, 150 S. E., 361; Beach v. Patton, 208 N. C., 134, 179 S. E., 446.

In the case in hand the relationship between defendant Railroad Company and the plaintiff is that of master and servant, or employer and employee.

What, then, is the standard of duty owed by the defendant Railroad Company to the plaintiff under the circumstances existing at the time and place of plaintiff’s injury ? While the books are full of writing on the subject, the accepted and well settled rule is that the master owes to tbe servant tbe duty to exercise ordinary care to provide a reasonably safe place in wbicb to do bis work and reasonably safe machinery, implements and appliances witb wbicb to work. Tbe master is not an insurer, however. Nor is it tbe absolute duty of tbe master to provide a reasonably safe place for tbe servant to work, or to furnish reasonably safe machinery, implements and appliances witb wbicb to work. He meets tbe requirements of tbe law, in tbe discharge of bis duty, if be exercises or uses ordinary care to provide for tbe servant such a place, or to furnish such machinery, implements and appliances, that is, that degree of care wbicb a man of ordinary prudence would exercise or use under like circumstances, having regard to bis own safety, if be were providing for himself a place to work, or if be were furnishing for himself machinery, implements and appliances witb wbicb to work. This rule of conduct of “tbe ordinarily prudent man” measures accurately tbe duty of tbe master and fixes tbe limit of bis responsibility to bis servant. Marks v. Cotton Mills, 135 N. C., 287, 47 S. E., 432; Nail v. Brown, 150 N. C., 533, 64 S. E., 434; Rogers v. Mfg. Co., 157 N. C., 484, 73 S. E., 227; Ainsley v. Lumber Co., 165 N. C., 122, 81 S. E., 4; Smith v. R. R., 182 N. C., 290, 109 S. E., 22; Gaither v. Clement, 183 N. C., 450, 111 S. E., 782; Tritt v. Lumber Co., 183 N. C., 830, 111 S. E., 872; Owen v. Lumber Co., 185 N. C., 612, 117 S. E., 705; Murphy v. Lumber Co., 186 N. C., 746, 120 S. E., 342; Shaw v. Handle Co., 188 N. C., 222, 124 S. E., 325; Michaux v. Lassiter, 188 N. C., 132, 123 S. E., 310; Cable v. Lumber Co., 189 N. C., 840, 127 S. E., 927; Riggs v. Mfg. Co., 190 N. C., 256, 129 S. E., 595; Lindsey v. Lumber Co., 190 N. C., 844, 130 S. E., 713; Hall v. Rhinehart, 191 N. C., 685, 132 S. E., 787; Craver v. Cotton Mills, supra, and numerous other cases.

In Murphy v. Lumber Co., supra, it is said: “It is not tbe absolute duty of tbe master to provide for bis servant a reasonably safe place to work and to furnish him reasonably safe appliances witb wbicb to execute tbe work assigned — such would practically render tbe master an insurer in every hazardous employment, but it is bis duty to do these things in tbe exercise of ordinary care. Owen v. Lumber Co., supra. This limitation on tbe master’s duty is not a mere play on words, nor a distinction without a difference, but it constitutes a substantial fact, or circumstance, affecting tbe rights of tbe parties. Tritt v. Lumber Co., supra.” See, also, Cable v. Lumber Co., supra; Lindsey v. Lumber Co., supra.

In Riggs v. Mfg. Co., supra, Clarkson, J., said: “It will be noted that it is tbe duty of tbe master to ‘use or exercise reasonable care’ or ‘use or exercise ordinary care’ to provide tbe servant a reasonably safe and suitable place in wbicb to do bis work. Tbe master is not an insurer.” See, also, Hall v. Rhinehart, supra.

In Gaither v. Clement, supra, Adams, J., speaking of the character and extent of the master’s duty, quotes from Bailey’s Law of Personal Injuries (2 ed.), sec. 162, as follows: “The underlying doctrine of the master’s duty towards his servant, with respect to the character of the appliances furnished and place of work, as well as other duties that rest upon him, is that of the exercise of ordinary care. His duty does not extend to providing reasonably safe places and appliances, but only to the exercise of reasonable care to provide such, and in determining the liability of the master in the matter of their sufficiency, this rule should be the guiding test.”

Under these principles, it was the duty of the defendant Bailroad Company, in the present case, to exercise ordinary care to provide for plaintiff a reasonably safe place in which to work, that is, that degree of care which a man of ordinary prudence would exercise under like circumstances, having regard for his own safety, if he were providing for himself a place to work. A breach of such duty would be negligence. The plaintiff charges such breach of duty.

But if it be conceded that there is evidence of negligence on the part of the Bailroad Company, we are of opinion and hold that such negligence is insulated by the negligence of the defendant, Mrs. Norman Elliott. In ascertaining the circumstances under which the parties in the present action were placed, it is pertinent to consider what duty, if any, the defendant, Mrs. Elliott, owed to the plaintiff. At the outset let it be noted that it is not contended that the defendant Bailroad Company required the plaintiff to work at a place in which it had no right to assign him work. It appears to be taken for granted that the Bail-road Company was obligated to keep the flooring of the grade crossing in question in repair so as to provide smooth passage over the railroad track for those traveling upon the highway — and that the plaintiff was lawfully upon the highway and in the performance of his duty as a member of the crew of workmen assigned to do such work.

It is a general rule of law, even in the absence of statutory requirements, that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. In the exercise of such duty it is incumbent upon the operator of a motor vehicle to keep same under control, and to keep a reasonably careful lookout, so as to avoid collision with persons and vehicles upon the highway. 5 Am. Jur. Automobiles, sections 165, 166, 167.

In this connection it is appropriate to note, among others, certain limitations the Legislature has placed upon the privilege accorded operators of motor vehicles of overtaking and passing as well as following vehicles proceeding in the same direction. The statute, Public Laws 1937, chapter 407, provides in section 112, subsection “c,” that “the' driver of a vehicle shall not overtake and pass any other vehicle proceeding in the same direction at any steam or electric railway grade crossing-nor at any intersection of highway unless permitted to do so by a traffic- or police officer”; and in section 114, subsection “a,” that “the driver of a motor vehicle shall not follow another vehicle more closely than is. reasonable and prudent, with regard for the safety of others and due-regard to the speed of such vehicles and the traffic upon and condition of the highway.” A violation of either of these statutes would be negligence per se, and, if injury proximately results therefrom, it would be-actionable. Williams v. Woodward, ante, 305.

Applying these principles to instant case, it was the duty of defendant, Mrs. Elliott, to exercise ordinary care in the operation of her automobile, having same under control and keeping a reasonably careful lookout, and to observe the law of the road so as to avoid collision with plaintiff in lawful pursuit of work upon the highway.

A laborer whose duties require him to be on the highway may assume-that operators of motor vehicles will use reasonable care and caution commensurate with visible conditions, and that they will approach with their cars under reasonable control, and that they will observe and obey the rules of the road.

“One is not under a duty of anticipating negligence on the part of' others, but in the absence of anything which gives or should give notice to the contrary, a person is entitled to assume, and to act on the assumption, that others will exercise ordinary care for their own safety.” 45 C. J., 705; Shirley v. Ayers, 201 N. C., 51, 158 S. E., 840. See, also, Cory v. Cory, 205 N. C., 205, 170 S. E., 629; Jones v. Bagwell, 207 N. C., 378, 177 S. E., 170; Hancock v. Wilson, 211 N. C., 129, 189 S. E., 631; Sebastian v. Motor Lines, 213 N. C., 770, 197 S. E., 539; Guthrie v. Gocking, 214 N. C., 513, 199 S. E., 707. The principle has-been applied in the courts of other states.

In Nehring v. Chas. M. Monroe Stationary Co. (1917), Mo. App., 191 S. W., 1054, where a street sweeper was struck by an automobile, the Court held that he was lawfully upon the roadway and in the performance of his duty, in plain view, and the driver of any vehicle was bound to take notice of him, and to exercise the care enjoined by law upon drivers of such vehicles not to injure him; and that he could rightly assume that this would be done.

In Papic v. Freund (1916), Mo. App., 181 S. W., 1161, where a truck ran over plaintiff’s leg while he was repairing the floor of a subway entrance to a terminal station, a board having been placed across the-side of the entrance to the subway, thus blocking entrance to the side on which he was working, the Court considered the case similar to those-involving, and that it should be disposed of in accordance- with, the principle which attends the use of a public street, and said: “In such circumstances, the law devolves the duty upon the defendant’s driver to anticipate the presence of persons engaged as plaintiff was, as within the range of reasonable probability, and to exercise due care in making observations to the end of rendering them reasonably secure from injury by being run upon.” And further, speaking of plaintiff, the Court there said: “It is certain that the law does not require one so situated to anticipate negligence on the part of others.”

In Ferguson v. Reynolds (1918), 52 Utah, 583, 176 Pac., 267, where a street sweeper was struck by an automobile, the Court, in upholding an instruction, said, “The instruction, in effect, merely informed the jury that the plaintiff had a right to assume that the driver of the automobile would exercise ordinary care in driving the car. This is certainly the law everywhere. No one using a public street, or being lawfully thereon, is required to assume otherwise than that all persons using the same will exercise ordinary care in doing so and will not expose anyone on the street to unnecessary danger.”

In the present case, in accordance with the general rule, the plaintiff had the right to assume, and to act upon the assumption, that the defendant, Mrs. Elliott, and others traveling upon the highway in question, would, in the operation of their motor vehicles, exercise ordinary care, that care which an ordinarily prudent person would exercise under like circumstances, and that they would observe the statutory rules of the road.

Such was the situation of plaintiff with respect to those traveling upon the highway.

Now, then, it may be appropriately stated here that the defendant Railroad Company, while it was engaged in working on the crossing in the highway, also owed to its codefendant, Mrs. Elliott, and others traveling upon the highway, the duty to exercise ordinary care in providing and maintaining reasonable warnings and safeguards against conditions existent at the time and place in question. Gold v. Kiker, supra. Likewise, in performing its duty to the plaintiff to exercise reasonable care to provide for him a reasonably safe place in which to work, the defendant Railroad Company owed the duty to plaintiff to exercise ordinary care in providing and maintaining reasonable warning to travelers upon the highway of the presence of plaintiff at work on the crossing in the highway. In the performance of this duty and bearing upon the care to be exercised by it, the defendant Railroad Company, in accordance with the general rule, had the right to assume that its co-defendant, Mrs. Elliott, and others using the highway, would exercise ordinary care and observe tbe law of the road in the operation of their automobiles.

Applying these principles to the facts in the case in hand, did the Eailroad Company exercise ordinary care, under the existing circumstances, in providing reasonable warnings of the fact that its servants were working in the highway ? We think so. The highway was straight, for half a mile. The railroad could be seen on both sides of the highway. There were both railroad crossing and highway stop signs to indicate the presence of the railroad crossing. In addition, the defendant Eailroad Company barricaded the side of the highway with a railroad dump car on one side of the crossing and a railroad motor car on the other — on each of which a standard sized red flag was displayed. The dump car could be seen for a half mile by one approaching from Eobersonville. It was in broad daylight.

In this situation, the rule of the ordinarily prudent man does not require Eailroad Company, in the performance of its duty to exercise ordinary care to provide plaintiff a reasonably safe place in which to work, to anticipate that the driver of an oncoming car will not see that which is plainly before her — or drive with her car so out of control that she cannot stop when she does see the barricade, or person, in the line of her travel, when, ordinarily, she would have plenty of time and space within which to avoid the injury. Nor was it required in exercise of such care to anticipate that she would violate the provisions of the statute with regard to overtaking and passing and following motor vehicles traveling in the same direction. Public Laws 1937, chapter 407, sections 112. (c) and 114 (a).

The case of Boyd v. R. R., supra, enunciates and applies to a similar factual situation the principles of law involved in the case in hand, with respect to question of negligence as well as of proximate cause. There the intestate was employed by defendant as watchman or flagman at a street crossing. On the night in question, upon noting the approach of a freight train, he went upon, the crossing with a red lantern, a regular flagman’s lantern, and began “flagging the crossing.” The operator of one automobile saw the intestate and as he began to stop his car, another car passed him, driving rapidly, and without stopping or attempting to stop, moved on to the crossing at a rapid rate of speed and struck the watchman and knocked him under the train which was then passing over the crossing. Brogden, J., speaking for the Court in sustaining judgment of nonsuit, said: “The only theory upon which the plaintiff seeks to recover is that the lantern furnished by defendant to the flagman was not a proper instrumentality in that it was an oil lantern and did not throw out sufficient light. This theory, however, is not supported by the evidence. The only, eye-witness to the killing saw the light and stopped. Tbe red lantern is a sign of danger. Its size and source of illumination are not material if, in fact, tbe instrumentality actually gave reasonable warning of danger. Tbe function performed by tbe appliance is more important upon tbe facts and circumstances of tbis ■case than mere mecbanical construction. Moreover, it is manifest that tbe unfortunate death of plaintiff’s intestate was proximately caused and produced by tbe negligence and reckless act of a third party, and that such reckless and negligent act was in no wise related to, growing out of, or dependent upon any omission of duty upon tbe part of defendant. Even if there was evidence of negligence upon tbe part of defendant, tbe applicable principle of liability is stated in Craver v. Cotton Mills, supra, in these words: ‘While there may be more than one proximate cause, that which is new and entirely independent breaks tbe sequence of ■events and insulates tbe original primary negligence. Tbis principle would apply if it should be granted that tbe defendant was negligent with respect to tbe light in tbe tower.’ Indeed, tbe ruling of tbe trial judge was in strict accordance with tbe principles of law announced in Lineberry v. R. R., supra; Thompson v. R. R., supra.”

It is pertinent to compare that case with tbe one in band. The principle of law is tbe same. While in tbe Boyd case, supra, tbe breach of duty charged against the defendant Railroad Company, the master, was tbe failure to exercise ordinary care to furnish to tbe plaintiff’s intestate, tbe servant, a reasonably safe lantern with which to work, here tbe alleged breach of duty against the defendant Railroad Company, tbe master, is tbe failure to exercise ordinary care to provide for tbe ■servant a reasonably safe place in which to work, in that it failed to provide sufficient warning to travelers upon tbe highway that plaintiff was working on the crossing in tbe highway. Tbe factual situations are ■■strikingly similar. Here tbe warning sign placed upon tbe dump car is a red flag of standard size. It was in fact seen and observed and tbe warning heeded by others traveling tbe highway just as in tbe Boyd ■case, supra. It is not contended that tbe red flag and tbe dump car could not be seen. While Mrs. Elliott described tbe flag as “a faded •out red flag” not “a brilliant new flag,” it was nevertheless red, according to all the testimony. In truth, she says that she saw it and that “it was banging from the end of tbe car down tbe center of tbe highway.” Tbe witness Womble saw the dump car, with tbe red flag on it, heeded tbe warning and passed by in safety and without injury to tbe plaintiff and ■others working on tbe crossing in tbe highway. The driver of tbe car which was being overtaken by defendant, Mrs. Elliott, saw tbe warning, ■slowed down, turned to tbe left and passed in safety and without injuring anyone. On tbe other band, as stated in brief of counsel for plaintiff, “She (Mrs. Elliott) dashed by in her car with perhaps a reckless ■degree of negligence and ran over tbe plaintiff from behind him.” But it is contended that Mrs, Elliott was prevented by the car ahead from seeing the dump car and red flag and that she did not see it until the car ahead turned to the left, when it was too late for her to stop in time to have averted the accident. However, Mrs. Elliott, testifying for plaintiff, frankly admits that she saw the railroad crossing sign and the State Highway stop sign, and that she knew she was approaching the crossing, and that she was traveling at a speed of forty-five to fifty miles per hour. While she stated that she intended to pass the car ahead after she had crossed the railroad track, she said, “I thought he slowed down and that I would go on and pass him. ... I started gaining speed to pass him and about time I put on speed he pulled to the left.” In this situation, she said, “I had nowhere to go but to hit the obstruction or the other car.” However, evidence points unerringly to the conclusion that this situation was created by her failure to exercise ordinary care and to observe the law of the road in the operation of her automobile, and that the injury to plaintiff was proximately caused thereby, independent of any act of omission of duty upon the part of the defendant Eailroad Company. Boyd v. B. R., supra: See, also, Powers v. Sternberg, supra, and Butner v. Spease, supra, where the subject of intervening negligence has been recently treated and applied.

The evidence discloses no reasonable ground for the foreman of defendant, present at the crossing, to anticipate that defendant, Mrs. Elliott, would not bring her car under control before colliding with the barrier placed as warning, until too late to warn plaintiff of the impending danger.

It is argued in favor of. plaintiff’s position that two permissible inferences of negligence are deducible from the evidence, first, that the notice to travelers on the highway was inadequate, and, second, that the rise of the dump car as a barrier created “a dangerous obstruction in the line of travel.” Neither view is predicated on the rule of ordinary care us the correct standard of conduct. The one suggests less, the other more, than ordinary prevision or foresight in providing the plaintiff a reasonably safe place to work. They both miss the mark. The rights of travelers on the highway are not involved in the case. We hold that on the record as presented, the plaintiff has failed to make out a case of actionable negligence against the defendant.

The pertinent authorities sustain the judgment below.

Affirmed.