Ellis v. ATLANTIC COAST LINE RAILROAD COMPANY , 241 N.C. 747 ( 1955 )

86 S.E.2d 406 (1955) 241 N.C. 747

Mrs. Florence E. ELLIS, Administratrix of the Estate of Vernon Ellis, Deceased,
v.
ATLANTIC COAST LINE RAILROAD COMPANY.

No. 237.

Supreme Court of North Carolina.

March 30, 1955.

E. Reamuel Temple, Jr., Smithfield, and J. R. Barefoot, for plaintiff, appellant.

Larry F. Wood, Smithfield, for defendant, appellee.

DENNY, Justice.

The appellant's exceptions are not grouped as required by the Rules of Practice in the Supreme Court, Rule 19(3), 221 N.C. at page 553 et seq. However, the appeal itself will be treated as an exception to the judgment, Fidelity Casualty Co. v. Green, 200 N.C. 535, 157 S.E. 797, but the other purported assignments of error which do not comply with our rules, may not be considered. G.S. § 1-282; State v. Bittings, 206 N.C. 798, 175 S.E. 299.

If it be conceded that the plaintiff's intestate was killed by one of the defendant's trains, the evidence is not sufficient to establish the fact that he was killed by its 11:50 p. m. southbound train on 29th May, 1952, as alleged in the complaint. Therefore, any conclusion as to which one of the defendant's trains killed the plaintiff's intestate would have to be based on mere speculation. Consequently, the evidence offered by the plaintiff in the trial below fails to show that the manner in which the defendant operated its 11:50 p. m. train on 29th May, 1952, was the proximate cause of the death of plaintiff's intestate.

Moreover, if the plaintiff's intestate entered upon or near the defendant's railroad tracks under the circumstances which the evidence tends to show, his status at such time was that of a trespasser. The accident, according to the evidence, occurred at least 300 yards from the nearest crossing. His act in placing himself in a dangerous position, on or near the defendant's railroad tracks, constituted such negligence on his part as would preclude a recovery of damages from the defendant for his death, unless the defendant had the last clear chance to avoid the injury. Lee v. Atlantic Coast Line R. R. Co., 237 N.C. 357, 75 S.E.2d 143; Osborne v. Norfolk & W. R. R. Co., 233 N.C. 215, 63 S.E.2d 147; Long v. Norfolk & Western R. R. Co., 222 N.C. 523, 23 S.E.2d 849; Justice v. Southern R. R. Co., 219 N.C. 273, 13 S.E.2d 553; Mercer v. Powell, 218 N.C. 642, 12 S.E.2d 227; Cummings v. Atlantic Coast Line R. R. Co., 217 N.C. 127, 6 S.E.2d 837. And the appellant admits in her brief that the doctrine of last clear chance does not apply in this case, and points out that it is not pleaded. Bailey v. North Carolina R. R. Co., 223 N.C. 244, 25 S.E.2d 833.

The ruling of the court below is

Affirmed.

BARNHILL, C. J., took no part in the consideration or decision of this case.