MANSFIELD v. ANDERSON, 43 N.C. App. 77 (1979)

PARKER, Judge.

Judge MARTIN (Harry C.) dissenting:

I respectfully dissent from the scholarly opinion of my distinguished colleague. This dissent is limited to the holding of the majority that Anderson was contributorily negligent as a matter of law. I concur in the other holdings set forth in the majority opinion.

Appellants' motion for a directed verdict based on Anderson's contributory negligence must be denied unless Anderson's evidence, taken as true and considered in the light most favorable to him, so clearly shows his negligence to have been a proximate cause of the collision and defendants' resulting damages that it will support no other conclusion as a matter of law. Neal v. Booth,287 N.C. 237,214 S.E.2d 36(1975).Page 92

As I view it, the controlling question in this appeal may be stated as follows:

Is it contributory negligence as a matter of law for the driver of a loaded tractor-trailer, when approaching a crossing with vision of the track partially obstructed by growth on the right-of-way, to enter upon the railroad crossing without stopping when the train operator is negligent in the operation of the train by travelling too fast and in failing to give timely warning of its approach to the crossing?

In reciting the evidence favorable to Anderson on the motion for directed verdict, the majority overlooks the important facts that the train was approaching the crossing at an excessive speed and failed to give any warning of its approach by horn, bell, whistle or other device and that vision of the crossing was partially obstructed by growth on the right-of-way. Anderson's actions must be viewed in this setting. He was not bound to anticipate that the train would approach the crossing in a negligent manner; however, his not hearing a warning signal of the approaching train would not justify his assuming that no train was approaching. Neal v. Booth, supra.

With no warning being given by the train crew that the train was approaching the blind crossing, would a reasonably prudent person stop his tractor-trailer in order to look for such train, when he was already looking and listening for the train as he approached the crossing at 3-4 m.p.h.? The majority say yes, or at least that he would operate his vehicle at a speed slower than 3-4 m.p.h., so as to be able to stop before reaching the rail. They further hold that such failure is "contributory negligence" as a matter of law.

The evidence establishes that Anderson reduced the speed of his vehicle as he approached the crossing; he was alert for the existence of an approaching train; he looked, and maintained a lookout for the train; he listened and continued to listen; he maintained his vehicle under control.

Anderson in approaching the track was in much the same position as the plaintiff in Townsend v. Railway Co.,35 N.C. App. 482,241 S.E.2d 859(1978), affirmed without precedential value by an equally divided Court in296 N.C. 246,249 S.E.2d 801(1978). InPage 93Townsend, plaintiff was first faced with a sidetrack located forty-seven feet from the main line track. He stopped his vehicle at the sidetrack, looked, listened and proceeded forward. Townsend, on approaching the main line, was in circumstances similar to those facing Anderson as he approached the railroad track. Their view of the track was partially blocked because of obstructions near the track, both were going at a slow rate of speed, both were looking and listening; not hearing or seeing a train, both continued onto the crossing and were struck by an approaching train. In Townsend, the Court stated:

A driver of an automobile or truck is expected to stop at a point before the crossing which yields a clear view of the tracks, and "look and listen in both directions for approaching trains, if not prevented from doing so by the fault of the railroad company." Johnson v. R.R.,255 N.C. 386,388,121 S.E.2d 580,582(1961). "A traveler on the highway has the right to expect timely warning, but the engineer's failure to give such warning will not justify an assumption that no train is approaching." Neal v. Booth, supra at 242, 214 S.E.2d at 39. "Where there are obstructions to the view and the traveler is exposed to sudden peril, without fault on his part, and must make a quick decision, contributory negligence is for the jury." Johnson v. R.R., supra at 388-9, 121 S.E.2d at 582.

Id. at 485-86, 241 S.E.2d at 862.

This Court in Townsend held the truck driver was not negligent as a matter of law and that the question was properly for the jury.

Here, the evidence raises inferences that Anderson drove upon the main line at an unreasonable speed in that he could not stop short of the rail before seeing the train; that a reasonably prudent person in similar circumstances would have stopped, got out of the vehicle, gone to a position closer than three to four feet from the track to look for an approaching train. See Moore v. R.R.,201 N.C. 26,158 S.E. 556(1931). However, those are not the only conclusions reasonably deducible from the evidence. Neal v. Booth, supra. That same evidence likewise gives rise to inferences that Anderson slowed his vehicle to a reasonable speed in approaching the crossing; that he kept his vehicle under proper control;Page 94that he kept a reasonable and proper lookout for approaching trains; that he listened in a reasonable manner for approaching trains; and that his failure to see the train was proximately caused by the obstructions along the tracks interfering with his view of the tracks. The question of contributory negligence necessarily involves several unknown quantities determinable only by the jury. The evidence does not support a finding of negligence as a matter of law.

In making his motion for directed verdict at the close of all the evidence, counsel for plaintiffs Mansfield and the railway company argued that the evidence disclosed as a matter of law that Anderson was acting as the agent of Galyeans at the time of the collision. The trial court simply denied plaintiffs' motions without specific reference to either the questions of agency or the negligence of Anderson. The trial court submitted issues to the jury of Anderson's negligence in the first and seventh issues, both being answered that he was not negligent. The question of Anderson being the agent of Galyeans was submitted to the jury in the sixth issue and answered in the affirmative. It must be remembered that Anderson made no claim against plaintiffs. In order for plaintiffs to defeat Galyeans' and Dimension's claims, they must show as a matter of law that Anderson was the agent of Galyeans and Dimension and that the negligence of Anderson was one of the proximate causes of their damages.

Dimension alleged Anderson was its agent; Galyeans denied Anderson was his agent and crossclaimed against him and Dimension. Plaintiffs' counsel did not move for a directed verdict against Galyeans on the limited question of Anderson's negligence, leaving the issue of agency for the jury. Their motions necessarily involved both negligence and agency. At the time the motions for directed verdict were made, it had not been judicially determined that Anderson was the agent of Galyeans when the collision occurred. This was later determined by the verdict of the jury. The evidence does not support a finding that Anderson was Galyeans' agent as a matter of law. The appellant railway company in its reply brief argues that this question of agency was properly submitted to the jury. In its principal brief, the railway company does not argue that the evidence supported a directed verdict on the agency issue at the close of all the evidence. AbsentPage 95a finding of agency as a matter of law, the directing of a verdict against Galyeans would have been improper.

I find the evidence considered under the above-stated rule is not sufficient to constitute contributory negligence as a matter of law. It was a question for the twelve, and they have reconciled it. I vote to affirm.