Oldham v. Seaboard Air Line Railway Co.

188 S.E. 106, 210 N.C. 642, 1936 N.C. LEXIS 183

• Court: Supreme Court of North Carolina
• Decided: November 4, 1936
• Status: Published

Opinion

Stacy, C. J.

Does the plaintiff’s alleged contributory negligence bar a recovery as a matter of law? The answer is “No.” Lincoln v. R. R., 207 N. C., 787, 178 S. E., 601. The issue was for the twelve.

Defendants have apparently misinterpreted plaintiff’s testimony. He does not say he knew the train was approaching before going upon the crossing. His statement, “I thought the train was coming from the south,” has reference to what he thought after his car had choked down or stopped, due to the direction in which the watchman was looking when he ran out with his stop sign.

The pertinent principle was stated by Hoke, J., in Shepard v. R. R., 166 N. C., 539, 82 S. E., 872, quoting with approval from 33 Cyc., 1028, as follows: “Where a railroad company maintains a flagman, gates, or other signals of warning at a railroad crossing, whether voluntarily or by law or custom, the public generally has a right to presume that these safeguards will be reasonably maintained and attended, and in the absence of knowledge to the contrary, the fact that the gates are open, or automatic bells not ringing, or that the flagman is absent from his post or, if present, is not giving a warning of danger, is an assurance of safety and an implied invitation to cross upon which a traveler familiar with the crossing may rely and act within reasonable limits, on the presumption that it is safe for him to go on the crossing. The extent to which a traveler may rely on such assurance is a question of fact, and while ordinarily the same degree of care and vigilance is not required of a traveler under such circumstances as otherwise, he has no right to rely exclusively upon such circumstances, nor will such presumption or assurance excuse the traveler from using every reasonable precaution that an ordinarily prudent man would use under like circumstances. Such facts as the absence or presence of a flagman, or that the gates are open, or that the automatic bells are ringing or not ringing, are merely facts to be considered in determining whether the traveler exercises the degree of care required in attempting to cross.”

The same rule was also applied in the cases of Parker v. R. R., 181 N. C., 95, 106 S. E., 755; Barter v. R. R., 193 N. C., 691, 138 S. E., 17; and Johnson v. R. R., 163 N. C., 431, 79 S. E., 690.

The negligence of the defendants is not seriously disputed. The watchman was “out of pocket” as plaintiff approached the crossing. If be bad been attentively on duty at that time, the injury might not have occurred. Shepard v. R. R., supra; Finch v. R. R., 195 N. C., 190, 141 S. E., 550.

The ease of Pitt v. R. R., 203 N. C., 279, 166 S. E., 67, cited and relied upon by defendants, is easily distinguishable by reason of different fact situations. In the cited case, the plaintiff drove upon the crossing without looking to bis left, the direction from which a fast passenger train was approaching, while in the instant case the plaintiff looked in.both directions before entering upon the crossing. In like manner, the case of Rimmer v. R. R., 208 N. C., 198, 179 S. E., 753, may be distinguished.

The plaintiff filed a petition for certiorari to correct the charge in accordance with the judge’s letter. The defendants consent that the correction may be made as requested, and no point is made in respect thereof.

No error.