Court: Supreme Court of North Carolina; April 15, 1953; North Carolina; State Supreme Court
Assignments of error Nos. 1 to 4 by the plaintiffs, concerning witness questioning by their counsel that the defendants objected to and which went unanswered, are deemed abandoned as they were not included in the plaintiffs’ brief. The only remaining assignments of error, Nos. 5 and 6, contest the trial court's rulings that granted motions for judgment as of nonsuit against all plaintiffs. The plaintiffs failed to allege or provide evidence that the view of the railroad tracks was obstructed at the Gulf Plant gate. Testimony from two witnesses indicated the distance from the gate to the tracks was approximately 25 to 47.75 feet. One witness, Dowdy, noted that he could see approximately 900 yards down the track in clear weather. He drove his tractor onto the crossing without stopping, looking left but failing to see the approaching train to his right until it was 300 to 400 feet away. Even if the defendants were negligent, Dowdy’s action of entering the crossing without proper lookout contributed to the accident, barring recovery unless the plaintiffs can invoke the last clear chance doctrine. The excerpt references several previous cases to underscore that, despite expectations of timely warnings from trains, travelers are still obligated to maintain a proper lookout. Dowdy, as an employee of Burns at the time, is legally accountable for his negligence, which is imputed to his employer.
The Insurance Company claims it has paid Burns $2,394.10 for damage to his tractor and oil tanker and seeks subrogation to Burns' rights for that amount. Subrogation allows one party to assume the rights of another concerning a lawful claim. The Insurance Company is considered one with Burns, meaning Dowdy's contributory negligence is legally attributed to Burns. The excerpt also addresses the doctrine of last clear chance, which applies when the injured party has been contributory negligent. This doctrine allows for recovery if the defendant could have avoided the injury through reasonable care, even with the plaintiff's negligence present. It emphasizes that last clear chance refers to the time between discovering the plaintiff's peril and the injury occurring, where a reasonably prudent person could have acted to prevent harm. The doctrine does not apply if the plaintiff's contributory negligence is legally established. Judicial notice is taken of universally known facts, such as road widths and train dynamics. In this case, Dowdy drove his tractor onto the tracks despite clearly seeing an approaching train from a distance of 300 to 400 feet, indicating negligence on his part.
The only witness to the train's speed testified it was traveling at approximately 12 to 15 miles per hour while Dowdy’s tractor and oil tanker were moving forward. Dowdy stated he shifted the tractor into reverse, causing it to stall on the tracks. Citing *Temple v. Hawkins*, the court noted that the engineer had the right to believe Dowdy could escape danger up until the moment of collision. The absence of a warning signal from the train could not be held against the defendants, as Dowdy had already seen the train approaching from 1,500 feet away.
In a comparable case, *Bailey v. R. R. and King v. R. R.*, the court observed that the plaintiffs did not plead "last clear chance" and there was no evidence indicating the engineer was aware of Dowdy’s predicament. Dowdy's actions—moving his tractor onto the tracks—suggested he was not helpless. When the train was reported to be 300 to 400 feet away, Dowdy's tractor was still moving forward before it stalled when he tried to reverse.
Although the engineer did not initially see the tractor, the fireman did and alerted him, prompting the engineer to apply the brakes without blowing the whistle. The train reportedly stopped 150 feet past the impact point, but plaintiffs did not provide evidence regarding the train's stopping distance or the number of cars involved.
The court concluded that the plaintiffs' evidence did not adequately demonstrate that the defendants could have avoided the accident despite Dowdy's contributory negligence. Therefore, the judgments of nonsuit in the Superior Court for all plaintiffs were affirmed.
