Irby v. Southern Railway Company , 246 N.C. 384 ( 1957 )

98 S.E.2d 349 (1957) 246 N.C. 384

Coyt IRBY
v.
SOUTHERN RAILWAY COMPANY, a corporation, and F. E. Ross.

No. 240.

Supreme Court of North Carolina.

June 7, 1957.

William H. Booe, Charlotte, for plaintiff appellant.

W. T. Joyner, Raleigh, Robinson, Jones & Hewson, Charlotte, for defendants appellees.

WINBORNE, Chief Justice.

If it be conceded that the evidence shown in the case on appeal is sufficient to support a finding by the jury that defendants were negligent at least in operating the train at a speed in excess of the city ordinance, the evidence offered by plaintiff, as shown in the case on appeal, establishes as a matter of law that plaintiff, by his own negligence, as a proximate cause, contributed to his injury. Godwin v. Atlantic Coast Line R. Co., 220 N.C. 281, 17 S.E.2d 137; McCrimmon v. Powell, 221 N.C. 216, 19 S.E.2d 880; Bailey v. North Carolina R. Co., 223 N.C. 244, 25 S.E.2d 833; Parker v. Atlantic Coast Line R. Co., 232 N.C. 472, 61 S.E.2d 370; Dowdy v. Southern R. Co., 237 N.C. 519, 75 S.E.2d 639; Boone v. North Carolina R. Co., 240 N.C. 152, 81 S.E.2d 380.

In approaching a grade crossing both the trainmen and travelers upon the highway are under reciprocal duty to keep a proper lookout and exercise that degree of care which a reasonably prudent person would exercise under the circumstances to avoid an accident. Thus a railroad company is under duty to give travelers timely warning of the approach of its train to a public crossing. Yet its failure to do so does not relieve the traveler of the duty to exercise due care for his own safety, and the failure of a traveler to exercise such care bars recovery, when such failure is a proximate cause of the injury. Godwin v. Atlantic Coast Line R. Co., supra.

In the instant case plaintiff knew that he was approaching a railroad, and knew he was entering a zone of danger. He was required before entering upon the track to look and listen to ascertain whether a train was approaching. Bailey v. North Carolina R. Co., supra.

Hence as stated in Parker v. Atlantic Coast Line R. Co., supra, opinion by Barnhill, J., later C. J., "It does not suffice to say that plaintiff stopped, looked and listened. His looking and listening must be timely, * * * so that his precaution will be effective." [232 N.C. 472, 61 S.E.2d 371]

The doctrine of last clear chance does not arise until it appears that the injured person has been guilty of contributory negligence, and no issue with respect thereto must be submitted to the jury unless there is evidence to support it. Redmon v. Southern R. Co., 195 N.C. 764, 143 S.E. 829; Cummings v. Atlantic Coast Line R. Co., 217 N.C. 127, 6 S.E.2d 837; Mercer v. Powell, 218 N.C. 642, 12 S.E.2d 227.

And when the doctrine of last clear chance is relied upon, the burden is on the plaintiff to show by proper evidence: (1) That at the time the injured party was struck by a train of defendant he was down, or in an apparently helpless condition on the track; (2) that the engineer saw, or, by the exercise of ordinary care in keeping a proper lookout could have seen the injured person in such condition in time to have stopped the train before striking him; and (3) that the engineer failed to exercise such care, as the proximate result of which the injury occurred. See Cummings v. Atlantic Coast Line R. Co., supra; Mercer v. Powell, supra, and cases cited.

Indeed the doctrine of last clear chance does not apply in cases where the person upon the track of a railroad, at the time, is in apparent possession of his strength and faculties, the engineer of the train that produces the injury having no information to the contrary. Under such circumstances the engineer is not required to stop the train, or to even slacken its speed, for the reason he may assume until the very moment of impact that such person will use his faculties for his own protection and leave the track in time to avoid injury. Cummings v. Atlantic Coast Line R. supra; Mercer v. Powell, supra, and cases cited.

Moreover, the principle is restated by Barnhill, J., later C. J., in Ingram v. Smoky Mountain Stages, 225 N.C. 444, 35 S.E.2d 337, 340, in this manner: "To sustain the plea [of last clear chance] it must be made to appear that (1) the plaintiff by his own negligence places himself in a dangerous situation, (2) the defendant saw, or by the exercise of reasonable care should have discovered, the perilous position of plaintiff, (3) in time to avoid injuring him, and (4) notwithstanding such notice and imminent peril negligently failed or refused to use every reasonable means at his command to avoid the impending injury, (5) as a result of which plaintiff was in fact injured," citing cases. To like effect is Aydlett v. Keim, 232 N.C. 367, 61 S.E.2d 109, opinion by Denny, J. See also Mount Olive Mfg. Co. v. Atlantic Coast Line R. Co., 233 N.C. 661, 65 S.E.2d 379.

The discovery of the danger, or duty to discover it, as basis for a charge of negligence on the part of defendant after the peril arose, involves something more than a mere discovery of, or duty to discover, the presence of the injured person, it includes a duty, in the exercise of ordinary care under the circumstances, to appreciate the danger in time to take the steps necessary to avert the accident.

"Peril and the discovery of such peril in time to avoid injury constitutes the backlog of the doctrine of last clear chance," so wrote Brogden, J., for the Court in Miller v. Southern R. Co., 205 N.C. 17, 169 S.E. 811, 812. See also Bailey v. North Carolina R. Co., 223 N.C. 244, 25 S.E.2d 833; Ingram v. Smoky Mountain Stages, supra.

"The last clear chance does not mean the last possible chance to avoid the accident." Lee v. Atlantic Coast Line R. Co., 237 N.C. 357, 75 S.E.2d 143, 147.

Testing the evidence offered by plaintiff in the light of the principle here invoked, it is apparent that the trial court did not err in sustaining defendant's motion for judgment as of nonsuit.

Other assignments of error have been given due consideration, and in them prejudicial error is not made to appear.

Affirmed.

JOHNSON, J., took no part in consideration or decision of this case.