Beaman v. Southern Railway Co. , 238 N.C. 418 ( 1953 )

Barnhill, J.

That the testimony offered by plaintiff, considered in the light most favorable to him, discloses negligence on the part of defendant may be conceded. If the judgment of nonsuit is to be sustained, it must be sustained for the reason plaintiff was guilty of contributory negligence as a matter of law.

On this phase of the case we must admit that this appeal presents a close question. It is a borderline case in which the presumption the trial judge ruled correctly must be considered in determining whether the' appellant has shown prejudicial error. . , . .

“Every decision of a competent court must be deemed to be according to the law and the truth of the case until the contrary is shown.” Gaston, J., Wade v. Dick, 36 N.C. 313.

On an appeal, error will not be presumed. Hayes v. Lancaster, 200 N.C. 293, 156 S.E. 530; Cole v. R. R., 211 N.C. 591, 191 S.E. 353; Manufacturing Co. v. Call, 211 N.C. 130, 192 S.E. 105. Instead, “the ruling of the court below in the consideration of an appeal therefrom is presumed to he correct.” Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789; Warren v. Land Bank, 214 N.C. 206, 198 S.E. 624.

The burden is on the appellant, Cole v. R. R., supra; Gold v. Kiker, 218 N.C. 204, 10 S.E. 2d 650; Gibson v. Dudley, 233 N.C. 255, 63 S.E. 2d 630. He must show error, Manufacturing Co. v. Call, supra; White v. Price, 237 N.C. 347, 75 S.E. 2d 244; McCune v. Manufacturing Co., 217 N.C. 351, 8 S.E. 2d 219; Freeman v. Preddy, 237 N.C. 734, 76 S.E. 2d 159, and “he must make it appear plainly . . .” Scott v. Swift & Co., 214 N.C. 580, 200 S.E. 21; Quelch v. Futch, 175 N.C. 694, 94 S.E. 713. (For other cases relating to the burden on appeal, see 2 N. C. Digest, Appeal and Error, Key 901.)

Here the plaintiff was thoroughly familiar with the crossing and the surrounding area. He knew that the tracks to his left curved in a southerly direction. He saw the trees and bushes along the track almost daily. He knew it was a dangerous crossing. It was a clear day and the windows to his automobile were open. He looked to the right and then to the left and there was nothing that he could see coming from the west. He then looked forward and proceeded to cross the track. When he traveled only from seven to nine feet and his right wheel was across the first rail, he saw a train to his left, from 125 to 175 feet from the crossing. Why did be not see tbe train almost directly in front of bim before it bad traveled from 125 to 175 feet beyond all obstructions? Was it for tbe reason be looked once and tben looked no more as bis evidence seems to indicate ?

He was asked: “At tbe time you stopped and looked you did not look any more until you got your wheels on tbe track, did you look to tbe left or west any more?” To tbis be replied: “I looked to tbe left and tben I looked forward because you bad to look where your car was going.”

“Q. You looked straight ahead?

“A. Yes.”

In explaining why be did not see tbe train until it was within about 125 feet of bim when be could have seen it along tbe north rail for 300 or 325 feet, be testified: “I got tbe right front wheel across tbe south rail of that track which took some little time from where I was stopped back here.”

Tbe record is not such as to permit us to say that tbe court beloAV was in error in concluding that if plaintiff bad looked slightly to bis left as be put bis vehicle in motion, be would have seen tbe approaching train in ample time to avoid tbe collision. Instead, bis evidence supports tbe conclusion that be looked once and tben looked no more. Tbe distance tbe train bad traveled between the time be looked and tbe time be actually saw it indicates strongly that it must have been in full view before be actually reached tbe zone of danger, and, as be was traveling at a speed of only three or four miles per hour, be could have stopped instantly. It would seem, therefore, that tbe line of decisions represented by Parker v. R. R., 232 N.C. 472, 61 S.E. 2d 370, and tbe cases there cited, is controlling.

As stated by Stacy, G. J., in Gold v. Kiker, supra:

“It may be conceded that tbe record is such as to leave tbe matter in some doubt. Tbis alone would seem to defeat tbe one assignment of error on appeal, as tbe party alleging error has tbe laboring oar and must overcome tbe presumption against bim . . . Verdicts and judgments are not to be disturbed except upon a showing of prejudicial error, i.e., error which amounts to a denial of some substantial right, (cases cited.)”

As tbe conclusion plaintiff has failed to overcome tbe presumption against bim prevails, tbe judgment entered must be

Affirmed.

WiNboene, J., took no part in tbe consideration or decision of tbis case.