Penland v. Southern Railway Co.

46 S.E.2d 303, 228 N.C. 528, 1948 N.C. LEXIS 259

• Court: Supreme Court of North Carolina
• Decided: February 25, 1948
• Status: Published

Opinion

Stacy, C. J.

Conceding the existence of negligence on the part of the defendants, which is stressfully denied, we think the case is controlled by the fact that plaintiff drove his automobile upon the railroad crossing in the face of an on-coming train which he saw, or, in the exercise of reasonable care, should have seen. This negligence on his part contributed to the injury, and bars recovery. Swaim v. High Point, 214 N. C., 672, 200 S. E., 373; Bailey v. R. R., 223 N. C., 244, 25 S. E. (2d), 833; Goodwin v. R. R., 220 N. C., 281, 17 S. E. (2d), 137.

In order to defeat an action like the present, it need not appear that plaintiff’s negligence was the sole proximate cause of the injury, as this would exclude any idea of negligence on the part of the defendants altogether. Abs her v. Raleigh, 211 N. C., 567, 190 S. E., 897. It is enough if it contribute to tbe injury as a proximate cause, or one of tbem. McKinnon v. Motor Lines, ante, 132; Tarrant v. Bottling Co., 221 N. C., 390, 20 S. E. (2d), 565; Beck v. Hooks, 218 N. C., 105, 10 S. E. (2d), 608; Wright v. Grocery Co., 210 N. C., 462, 187 S. E,, 564. Indeed, tbe very term “contributory negligence” ex vi termini signifies contribution rather than independent or sole cause. Fulcher v. Lumber Co., 191 N. C., 408, 132 S. E., 9.

Tbe plaintiff says be saw a dim light in tbe drizzling rain and fog, but did not recognize it as tbe headlight of an engine. His familiarity with tbe surroundings may have lulled him into carelessness or insecurity, nevertheless bis failure to discern and appreciate the obvious renders him contributorily negligent as a matter of law. McCrimmon v. Powell, 221 N. C., 216, 19 S. E. (2d), 880; Miller v. R. R., 220 N. C., 562, 18 S. E. (2d), 232; Tart v. R. R., 202 N. C., 52, 161 S. E., 720; Eller v. R. R., 200 N. C., 527, 157 S. E., 800; Harrison v. R. R., 194 N. C., 656, 140 S. E., 598. He may not recover when bis negligence concurs with the negligence of tbe defendants in proximately producing tbe result. Davis v. Jeffreys, 197 N. C., 712, 150 S. E., 488; Construction Co. v. R. R., 184 N. C., 179, 113 S. E., 672.

There is no contention that tbe atmospheric condition was such as to affect plaintiff’s vision. Meacham v. R. R., 213 N. C., 609, 197 S. E., 189. The fact is, he did see a dim light down the track, but failed to recognize it as the headlight of an engine. Having seen, it was his duty to take note and heed. This he omitted to do. Furthermore, when pressed on cross-examination, the plaintiff declined to say whether he “did or did not” see the engine light. Others in the car with him saw it and called his attention to it, but he “kept on going” and did not stop. His hearing was not good. Johnson v. R. R., 214 N. C., 484, 199 S. E., 704.

The demurrer to the evidence or motion to dismiss the action as in case of nonsuit was well interposed. G. S., 1-183.

Reversed.