Odom v. Atlantic Coast Line Railroad

Supreme Court of North Carolina

Odom v. Atlantic Coast Line Railroad

137 S.E. 313, 193 N.C. 442, 1927 N.C. LEXIS 370

CourtSupreme Court of North Carolina

DecidedMarch 30, 1927

StatusPublished

Cited by9 cases

This text of 137 S.E. 313 (Odom v. Atlantic Coast Line Railroad) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Odom v. Atlantic Coast Line Railroad, 137 S.E. 313, 193 N.C. 442, 1927 N.C. LEXIS 370 (N.C. 1927).

Pincite

Opinion

Stacy, C. J.,

after stating the case: The facts of the instant case are so nearly like those in the case of Parker v. R. R., 181 N. C., 95, and the principles of law applicable are so thoroughly discussed in that case, with full citation of authorities, that we deem it unnecessary to do more than refer to the Parker case, as authority for reversing the present judgment of nonsuit. See, also, McLellan v. R. R., 155 N. C., 1.

The evidence of negligence is plenary, and even though Cope, the driver of the truck, may have been guilty of negligence, which also contributed to the plaintiff’s intestate’s injury and death, still the plaintiff would be entitled to have the case submitted to the jury, for, in this jurisdiction, the negligence of the driver of a public or private conveyance is not imputed to a passenger for hire or a guest therein, unless such passenger or guest exercise some kind of control or authority over the driver of the conveyance. Duval v. R. R., 134 N. C., 331; White v. Realty Co., 182 N. C., 536; 20 R. C. L., 163.

*444 Nor can it be said, as a matter of law, from the evidence appearing on the present record, that plaintiff’s intestate’s alleged contributory negligence was such as to bar a recovery. In Dyer v. Erie Ry. Co., 71 N. Y., 228, it was held (as stated in the last head-note) : “The mere fact that a person jumps from a vehicle in which he is traveling, where there is imminent danger of its coming in collision with an approaching train at a crossing, does not bar a recovery against the railroad corporation, although it appears that he made a mistake and would have escaped injury had he remained quiet.”

This position is directly upheld in Parker v. R. R., supra, and is supported, in tendency at least, by what was said in Norris v. R. R., 152 N. C., 513.

There was error in entering judgment as of nonsqit. This will be reversed and the cause remanded for trial before a jury.

Reversed.

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Stacy, C. J.,

after stating the case: The facts of the instant case are so nearly like those in the case of Parker v. R. R., 181 N. C., 95, and the principles of law applicable are so thoroughly discussed in that case, with full citation of authorities, that we deem it unnecessary to do more than refer to the Parker case, as authority for reversing the present judgment of nonsuit. See, also, McLellan v. R. R., 155 N. C., 1.

The evidence of negligence is plenary, and even though Cope, the driver of the truck, may have been guilty of negligence, which also contributed to the plaintiff’s intestate’s injury and death, still the plaintiff would be entitled to have the case submitted to the jury, for, in this jurisdiction, the negligence of the driver of a public or private conveyance is not imputed to a passenger for hire or a guest therein, unless such passenger or guest exercise some kind of control or authority over the driver of the conveyance. Duval v. R. R., 134 N. C., 331; White v. Realty Co., 182 N. C., 536; 20 R. C. L., 163.

*444 Nor can it be said, as a matter of law, from the evidence appearing on the present record, that plaintiff’s intestate’s alleged contributory negligence was such as to bar a recovery. In Dyer v. Erie Ry. Co., 71 N. Y., 228, it was held (as stated in the last head-note) : “The mere fact that a person jumps from a vehicle in which he is traveling, where there is imminent danger of its coming in collision with an approaching train at a crossing, does not bar a recovery against the railroad corporation, although it appears that he made a mistake and would have escaped injury had he remained quiet.”

This position is directly upheld in Parker v. R. R., supra, and is supported, in tendency at least, by what was said in Norris v. R. R., 152 N. C., 513.

There was error in entering judgment as of nonsqit. This will be reversed and the cause remanded for trial before a jury.

Reversed.

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137 S.E. 313, 193 N.C. 442, 1927 N.C. LEXIS 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/odom-v-atlantic-coast-line-railroad-nc-1927.

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