Rimmer v. Southern Railway Co.

179 S.E. 753, 208 N.C. 198, 1935 N.C. LEXIS 359

• Court: Supreme Court of North Carolina
• Decided: May 1, 1935
• Status: Published

Opinion

Stacy, 0. J.

This is another crossing accident. The negligence of the defendant may be considered as established by the evidence. Johnson v. R. R., 205 N. C., 121, 170 S. E., 120.

The action was dismissed as in case of nonsuit on account of the contributory negligence of plaintiff’s intestate. Young v. R. R., 205 N. C., 530, 172 S. E., 177; Tart v. R. R., 202 N. C., 52, 161 S. E., 720; Eller v. R. R., 200 N. C., 527, 157 S. E., 800; High v. R. R., 112 N. C., 385, 17 S. E., 79. It was said in Davidson v. R. R., 171 N. C., 634, 88 S. E., 759, that “When a pedestrian, in the daytime, steps upon a railroad track, the view of which is unobstructed, and is injured thereby, and has not looked or listened, his own negligence is the proximate cause of the injury, and such negligence will preclude his recovery.” See, also, Pope v. R. R., 195 N. C., 67, 141 S. E., 350, and cases there cited.

Nor is plaintiff's case saved by the doctrine of the last clear chance. This doctrine does not apply when the contributory negligence of the party injured or complaining, as a matter of law, bars recovery. Redmon v. R. R., 195 N. C., 764, 143 S. E., 829.

“It is the recognized duty of a person on or approaching a railroad crossing to .‘look and listen in both directions for approaching trains, if not prevented from doing so by the fault of the railroad company or other circumstances clearing him from blame,’ and where, as to persons other than employees of the company, there has been a breach of this duty clearly concurring as a proximate cause of the injury, recovery therefor is barred”—Hoke, C . J., in Holton v. R. R., 188 N. C., 277, 124 S. E., 307.

Upon the record and the authorities apposite, the judgment of nonsuit must be upheld. It is so ordered.

Affirmed.