Swaim v. High Point, Etc., Railroad

200 S.E. 373, 214 N.C. 672, 1939 N.C. LEXIS 404

• Court: Supreme Court of North Carolina
• Decided: January 4, 1939
• Status: Published

Opinion

Stacy, C. I.

This is a case of sharp contradictions. The parties do not agree (1) as to when or how the plaintiff’s automobile reached Cedar Lodge Crossing; (2) whether the plaintiff or his companion was driving it at the time; (3)’ whether they were drunk or sober; and, (4) whether they heard or could have heard the whistle signal of the locomotive. Johnson v. R. R., ante, 484.

Conceding, without deciding, that there may be evidence of negligence on the part of the defendant, it is also in evidence, without contradiction, that plaintiff saw the headlight of the locomotive as it approached the crossing, and he says he “figured that there was another car coming down the dirt road.” We think it must be held as a matter of law that one who knowingly drives an automobile upon a railroad crossing in the clear nighttime immediately in front of an on-coming locomotive with its headlight shining, which he sees, and does not take the precaution to ascertain whether it is the headlight of a locomotive on the track or an automobile on a dirt road, falls short of the requirement of a reasonably prudent man. Such, in effect, was the holding in Holton v. R. R., 188 N. C., 277, 124 S. E., 307. This bars a recovery. Royster v. R. R., 147 N. C., 347, 61 S. E., 179; Coley v. R. R., 213 N. C., 213, 195 S. E., 392; Harrison v. R. R., 194 N. C., 656, 140 S. E., 598; Coleman v. R. R., 153 N. C., 322, 69 S. E., 251. See Meacham v. R. R., 213 N. C., 609.

The case of Preddy v. Britt, 212 N. C., 719, 194 S. E., 494, is distinguishable by reason of a different fact situation. So, also, are the cases cited by the plaintiff.

On the record, it would seem that the exception to the court’s refusal to dismiss the action as in case of nonsuit is well taken.

Reversed.