
    E. M. BROWN & CO. v. ATLANTIC COAST LINE RAILROAD COMPANY.
    (Filed 29 March, 1916.)
    1. Railroads — Crossings — Negligence — Look and Listen — Track—Improper Construction.
    Where there is evidence that one driving an automobile approached a public crossing of a railroad, where the view of an approaching train was obstructed, with due regard to his safety, looking and listening for the train, which came without signal or warning, and which he could not see before going upon the track; that he was prevented from crossing by a vehicle approaching from the opposite direction, and in endeavoring to back his machine out of danger his engine stopped, and because the track was not properly filled, the rails standing above the level of the ground, his machine could not be made to move, and was struck by the locomotive, causing him to be injured while endeavoring to jump out; that the engineer should, by the exercise of proper care, have seen plaintiff’s danger in time to have avoided the injury: Held, sufficient upon the question of defendant’s actionable negligence to take the case to the jury.
    
      2. Same — Sudden Peril — Contributory Negligence — Rule of Prudent Man.
    Under the circumstances of this case, it is held that the condition of the defendant railroad company’s track at a crossing where its locomotive had a collision with plaintiff’s automobile, causing the injury complained of, was evidence of defendant’s negligence in not properly filling between the .rails, leaving for the determination of the jury whether the plaintiff acted as a man of ordinary prudence and presence of mind would have done when confronted suddenly by the same grave peril, though the care required of him in approaching the track was increased in proportion to the danger in attempting to cross the same where the view was obstructed.
    Appeal by defendant from Daniels, J., at November Term, 1915, of Columbus.
    Tbe defendant, in its brief, states witb sufficient accuracy tbe respective contentions of tbe parties, and we adopt its statement as containing tbe material facts.
    Tbis was an action brought by tbe plaintiff against tbe defendant to recover damages for personal injuries received by bim and damage to bis automobile claimed to bave been caused by tbe negligence of tbe defendant while plaintiff in bis automobile was attempting to cross tbe tracks of tbe defendant in tbe town of Cerro Gordo. Plaintiff alleged that on 18 December, 1914, while going over a public crossing in tbe town of Cerro Gordo, a few feet west of tbe defendant’s station, be was struck by a train of tbe defendant which was negligently approaching tbe crossing without giving any signal by bell, whistle, or otherwise. He alleges that tbe crossing was negligently constructed and defective, in that there was no material between tbe rails on tbe track and each side of tbe rails of tbe track to serve as a support for tbe wheels of vehicles using tbe same in crossing, and which would bave held them up near tbe level of tbe top of tbe rails and made tbe crossing safe for public use by providing for vehicles attempting to use tbe same to pass without unusual jars, and without stalling on tbe track and crossing, and was too narrow to permit vehicles to pass each other over tbe same, and that be drove bis automobile in a careful and safe manner towards tbe crossing, making careful observation for approaching trains, having due regard to bis safety and tbe safety of other persons who might be using tbe crossing, and when be reached a point between tbe rails of tbe defendant’s main line of track, be observed approaching from tbe north a vehicle, which be bad been prevented from seeing before be got on tbe track by tbe cars of tbe defendant which bad been negligently left on tbe side-track, and that in order to prevent a collision witb tbe vehicle be was compelled to stop bis car at said point on tbe track, when be observed approaching from tbe west an engine and cars which bad failed to give any signal, and be immediately signaled to tbe engineer in charge of tbe train to stop, and attempted to back bis automobile off of the track, which he failed to do by reason of the negligent construction of the crossing. He further alleges that his engine stalled and stopped, and the defendant’s engineer failed and refused to stop the train or to give any attention to his signals of distress, and negligently struck him and his car, and injured him. All of which the defendant denies.
    The second cause of action is upon the same statement of facts, except that it alleges damages to the machine.
    The defendant alleges that the plaintiff was guilty of negligence, in that he negligently ran his automobile on the track immediately in front of the defendant’s train while it was moving forward along the track, when the train was too close to stop before striking the machine, and that he negligently failed to stop and look and listen for the train before going on the track, and that he could have prevented the injury, as he could have seen and heard the train in time to have stopped his machine and avoided the injury.
    The jury returned a verdict for the plaintiff, finding that there was negligence on the part of the defendant and none by the plaintiff, and assessed damages for the personal injuries at $1,600 and for injury to the automobile at $400. Judgment was entered thereon, and defendant appealed.
    
      Irvin B. Tuclcer and H. L. Lyon for plaintiff.
    
    
      Davis & Davis, Schulhen, Toon & Schulhen for defendant.
    
   Walker, J.,

after stating the case: A careful analysis of the record convinces us that there has been no error committed in this case. On 18 December, 1914, plaintiff attempted to cross defendant’s track, on a public highway intersected by it, in his automobile. He testified that he both looked and listened for approaching trains, but that his view was obstructed by cars of the defendant negligently left on a parallel track and by other hindrances, and that he looked as best he could, and also listened for the noise of the train and signals for the crossing, but heard none. That he went upon the track, believing it to be safe to do so, and being induced to do so by the defendant’s failure to give proper warning of the approach of one of its trains, and that he would have crossed safely had it not been for the approach of another person in á vehicle from the other side of the track, which prevented his going on, as he had intended to do. He then backed over the track in the direction from which he had come, but that the crossing was in such bad condition as to cause his automobile to stall on the track, and the train, which was coming towards him at the time, and in full view of his perilous position, ran into him and damaged him and his automobile. He further testified that the engineer could have seen that he was in trouble with bis car on tbe track and in danger o£ a collision if be did not stop bis train, wbicb be bad full time and opportunity to do before reaching tbe place on tbe track where tbe plaintiff bad stopped, and that be signaled tbe engineer to stop.

There was other evidence tending to show that defendant’s servants were negligent and that plaintiff was free from fault.

Tbe court submitted tbe ease to tbe jury under a charge, which was exceptionally clear in its statement of tbe law as applicable to tbe facts and wbicb covered completely every phase of tbe case. It certainly was not unfavorable to tbe defendant, and was entirely free from any error.

Tbe jury, under tbe evidence and tbe charge, considered in connection with tbe verdict, must have found that defendant so obstructed tbe view of its track from tbe road that plaintiff could not see or bear approaching trains, although be looked and listened for them, and that defendant also failed to exercise care in giving proper signals from its train of its approach to tbe crossing, and that this proximately caused the collision and consequent injury, or that after plaintiff bad stalled on tbe crossing be was seen by tbe engineer in time for him to have prevented tbe injury by stopping bis train, or that both acts of negligence combined to produce tbe injury. On these questions tbe court charged tbe jury according to tbe approved precedents in this Court.

We held in Shepard v. R. R., 166 N. C., 539, following two of tbe rules laid down in Cooper v. R. R., 140 N. C., 209, and Johnson v. R. R., 163 N. C., 431, as follows: “Where tbe view i.s unobstructed, a traveler who attempts to cross a railroad track under ordinary and' usual conditions without first looking, when by doing so be could note tbe approach of a train in time to save himself by reasonable effort, is guilty of contributory negligence.

“Where tbe view is obstructed, a traveler may ordinarily rely upon bis sense of bearing, and if be does listen and is induced to enter on a public crossing because of tbe negligent failure of the company to give tbe ordinary signals, this will usually be attributed to the failure of the company to warn the traveler of the danger, and not imputed to him for contributory negligence.”

The court substantially instructed tbe jury in accordance with those rules, and if the jury found that there was negligence in tbe respect indicated in tbe latter of those two rules, and that it was the proximate cause of the injury, we can see no fault in that part of the charge. Shepard’s case was again before tbe Court, and is reported in 169 N. C., 239, where the former decision was approved, and where it was further held that if plaintiff (in that case) was running his automobile at a rate of speed prohibited by tbe statute (Laws 1913, ch. 101), he was not, as a matter of law, debarred of a recovery, as the question of proximate cause was involved and was for the jury to determine. We have referred to that ease especially because the plaintiff therein was in an automobile at the time he approached the crossing, and defendant in this case cites N. Y. C. and A. R. R. v. Maidment, 21 L. R. A. (N. S.), as perhaps a rule especially applicable to the automobile driver in regard to the duty of looking and listening, and controlling the speed of his car, somewhat different from that which is the standard in other cases. Without deciding whether ’ there should be a difference between the driver of an automobile and the driver of an ordinary vehicle drawn by a horse or other animal likely to be frightened by a train, in respect of the care to be exercised' by each of them, as stated in that case, we think the duty of the plaintiff in approaching the defendant’s track with his car was carefully and properly explained to the jury, in the charge of the court, according to the principle as declared in Shepard v. R. R., 166 N. C., 539. In that case, at p. 545, the Court said: “It is also established by the weight of authority that it is not always imperative on a traveler to come to a complete stop before entering on ,a railroad crossing; but 'whether he must stop, in addition to looking and listening, depends upon the facts and. circumstances of each particular case, and so is usually a question for the jury.’ Alexander v. R. R., 112 N. C., 720; Judson v. R. R., 158 N. Y., 597; Malott v. Hawkins, 159 Ind., pp. 127-134; 3 Elliott on Railroads (2 Ed.), sec. 1095, Note 147; 33 Cyc., pp. 1010, 1011-1020. In Alexander’s case it was held, among other things: 'Where in an action for damages for an injury received at a railroad crossing plaintiff testified that she “held up very slow,” as she was driving across, and, hearing no bell, which she had heard the day before while at the crossing, notwithstanding the noise of the factories on each side of the street, concluded that no engine was approaching, and drove on: Held, that it was not necessary for her to get out of her buggy and go beyond the cars to look up and down the track, or to stop and listen for an approaching engine when no signal was given of its approach.’ In Judson’s case, supra: 'A person approaching a railroad crossing is not required, as a matter of law, to stop before attempting to cross, but his omission to do so is a fact for the consideration of the jury.’ In Malott’s case, 159 Ind., supra, Gallett, J., delivering the opinion, said: 'Exceptional circumstances may also require him to stop, although this proposition generally presents itself as a mixed question of law and fact.’ ” That case was approved in Hunt v. R. R., 170 N. C., 442.

In respect to the condition of the crossing, it is our view that the same question is not presented in this case as in Hunt’s case, supra. It was material to inquire whether the track was properly filled between the rails, as it seems that the reversal of the engine and the condition of the crossing caused the car to stop, according to plaintiff’s testimony. If without fault he went upon the track and was then confronted suddenly by a grave peril, and exercised such, care as a man of ordinary prudence and presence of mind would bave used under tbe same circumstances, negligence will not be imputed to bim, and tbe court so charged tbe jury. Not having brought tbe danger upon himself, or, if be did, tbe defendant having a fair opportunity to prevent tbe injury, be was not required to act wisely or discreetly, but only with such care and judgment as would be expected of a man of ordinary prudence in a like situation. He testified that be could not go forward safely, as another vehicle was in bis way, and be backed, hoping to clear tbe track in another direction, but failed to do so, owing to tbe stoppage of bis car. There was no dirt between tbe rails, and tbe front wheels struck tbe rail and stopped tbe engine. He then called to tbe engineer and attempted to jump over tbe back seat of tbe car, when be was stricken by tbe engine. Whether be acted with ordinary prudence under tbe circumstances was a question for tbe jury, it not being so clear that be did not as to make it a question of law. “Tbe well settled rule that where one is placed in imminent danger be is not required to act with tbe same degree of care as if be bad time for deliberation has been applied in tbe case of an accident to an automobile at a railroad crossing.” 2 Ruling Case Law, p. 1207, sec. 42.

The plaintiff stated that he could not see tbe train until be got upon tbe track, as bis view was obstructed by tbe defendant’s cars on another track, and there was evidence that no signal of tbe approaching train was given, so that be could not either bear or see, and be could bave crossed safely bad it not been for tbe other vehicle which was coming over tbe crossing in tbe opposite direction, and, in backing to avoid a collision with it, be was caught on tbe track and could not move bis car, as its engine bad stopped; and there was further evidence that be did tbe best that be could, in tbe presence of tbe impending danger, with bis way blocked, bis engine stopped, and a train approaching on tbe same track. It is true that where tbe view of tbe track from a railroad crossing is obstructed tbe degree of care required of a traveler as well as of tbe railroad company is correspondingly increased and should be in proportion to tbe danger, R. R. v. Grubbs, 113 Va., 214; but whether tbe proper degree of care was exercised at tbe time of crossing tbe track or attempting to do so, and whether tbe traveler and tbe company continued in tbe exercise of tbe requisite degree of care, are questions for tbe jury, and tbe judge so treated them in this case, making proper allowance for plaintiff’s alarm or fright when confronted by a grave peril.

Tbe case was tried according to tbe rules approved by this Court and applicable to every phase of it as disclosed by tbe testimony.

No error.  