{ "id": 8555349, "name": "GEORGIE JOHNSON LEGGETT, Executrix and ROY G. LEGGETT, Executor of the Estate of ALLINE JOHNSON WIGGINS, Deceased v. SEABOARD AIR LINE RAILROAD COMPANY and L. E. ALEXANDER", "name_abbreviation": "Leggett v. Seaboard Air Line Railroad", "decision_date": "1971-03-31", "docket_number": "No. 7110SC201", "first_page": "681", "last_page": "684", "citations": [ { "type": "official", "cite": "10 N.C. App. 681" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "88 S.E. 329", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1916, "opinion_index": 0 }, { "cite": "171 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269927 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/nc/171/0266-01" ] }, { "cite": "129 S.E. 2d 624", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "259 N.C. 43", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559154 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0043-01" ] }, { "cite": "158 S.E. 556", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1931, "opinion_index": 0 }, { "cite": "201 N.C. 26", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621823 ], "year": 1931, "opinion_index": 0, "case_paths": [ "/nc/201/0026-01" ] }, { "cite": "121 S.E. 2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "255 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569744 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/255/0386-01" ] }, { "cite": "129 S.E. 2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "259 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559091 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0001-01" ] }, { "cite": "118 S.E. 2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "253 N.C. 679", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626804 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/253/0679-01" ] }, { "cite": "61 S.E. 2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "232 N.C. 472", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606071 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/nc/232/0472-01" ] } ], "analysis": { "cardinality": 477, "char_count": 9111, "ocr_confidence": 0.559, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2060098870629137 }, "sha256": "6df903e8fc704d163beea57a9d24aa1369068a49a97037c087309ccb5f2ee7d3", "simhash": "1:83b8baf1b5be47e5", "word_count": 1536 }, "last_updated": "2023-07-14T19:51:53.441044+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Campbell and Britt concur." ], "parties": [ "GEORGIE JOHNSON LEGGETT, Executrix and ROY G. LEGGETT, Executor of the Estate of ALLINE JOHNSON WIGGINS, Deceased v. SEABOARD AIR LINE RAILROAD COMPANY and L. E. ALEXANDER" ], "opinions": [ { "text": "HEDRICK, Judge.\nThe plaintiffs contend that the court committed prejudicial error in instructing the jury that it is contributory negligence barring recovery for one to attempt to cross a railroad track without looking and listening when within the danger limits, and when such looking and listening would be effective.\n\u201cIt does not suffice to say that plaintiff stopped, looked, and listened. His looking and listening must be timely, McCrimmon v. Powell, supra, so that his precaution will be effective. Godwin v. R. R., supra. It was his duty to \u2018look attentively, up and down the track,\u2019 in time to save himself, if opportunity to do so was available to him.\u201d Parker v. R. R., 232 N.C. 472, 61 S.E. 2d 370 (1950) ; see also Arvin v. McClintock, 253 N.C. 679, 118 S.E. 2d 129 (1961), and cases cited therein.\nThere is evidence in the record from which the jury could find that from a point just east of the defendant\u2019s main line track plaintiffs\u2019 testate had an unobstructed view to the north of 750 feet, and there is also evidence in the record from which the jury could find that plaintiffs\u2019 testate failed to stop, look, and listen before attempting to cross the main line track.\nThe plaintiffs next contend that the court denied \u201cto the plaintiff appellants the benefit of the reasonable inference on all of the evidence that the plaintiff had stopped prior to placing herself in a position of peril.\u201d There is no direct testimony in the record that plaintiffs\u2019 testate stopped her automobile before driving upon the tracks. The plaintiffs insist that the inference arises from consideration of all of the evidence that she did stop. With respect to this evidence, the court, in its instructions to the jury, stated: \u201cDefendants contend and say that all of the evidence, even the evidence from the plaintiff\u2019s own witnesses, particularly of the person who operated the electric shop that she failed to stop. . . .\u201d In challenging this portion of the instructions, the plaintiffs in their brief argue that \u201cthe Court incorrectly stated that the operator of the electric motor shop . . . had testified that Mrs. Wiggins failed to stop.\u201d In the challenged portion of the instructions, it is clear that the court was not stating that Mrs. Wiggins did not stop, but was merely stating one of the contentions of the defendants, and when the charge is considered as a whole it is clear that the plaintiffs1 were given the benefit of every inference fairly deducible from the evidence that she did stop.\nThe plaintiffs\u2019 third contention is that the trial court committed prejudicial error in failing to instruct the jury, as requested, that the defendant railroad had a duty to maintain a public crossing in a reasonably safe condition, and in failing to state that the conduct of Mrs. Wiggins \u201cshould be considered in light of the defendants\u2019 negligent maintenance of an unusually hazardous crossing.\u201d Since the jury found that the negligence of the defendants was one of the proximate causes of the collision, the plaintiffs could not have been prejudiced by any error committed by the court in its instructions as to the negligence of the defendants. Conference v. Miles and Conference v. Creech and Teasley v. Creech, 259 N.C. 1, 129 S.E. 2d 600 (1963). By the second part of this contention, the plaintiffs apparently are contending that the maintenance of an unusually hazardous crossing by the defendant railroad lessens the degree of care required by a motorist attempting to cross the tracks. The defendant railroad and Mrs. Wiggins were under a mutual and reciprocal duty to exercise due care to avoid the accident. Johnson v. R. R., 255 N.C. 386, 121 S.E. 2d 580 (1961) ; Moore v. R. R., 201 N.C. 26, 158 S.E. 556 (1931). While it is true that the maintenance of an unusually hazardous crossing by the defendant railroad places upon it a duty of care commensurate with the danger created, May v. R. R., 259 N.C. 43, 129 S.E. 2d 624 (1963), it is equally true that the duty of care owed by the motorist increases commensurately. Brown v. R. R., 171 N.C. 266, 88 S.E. 329 (1916). The assignments of error upon which these contentions are based are all without merit.\nThe plaintiffs have brought forward other assignments of error directed to the admission and exclusion of evidence, and to the court\u2019s instructions to the jury. A careful examination of each exception in the record fails to reveal any prejudicial error.\nNo error.\nJudges Campbell and Britt concur.", "type": "majority", "author": "HEDRICK, Judge." } ], "attorneys": [ "Bailey, Dixon, Wooten & McDonald, by Wright T. Dixon, Jr., and John N. Fountain for plaintiff appellants.", "Maupin, Taylor & Ellis by Thomas F. Ellis for defendant appellees." ], "corrections": "", "head_matter": "GEORGIE JOHNSON LEGGETT, Executrix and ROY G. LEGGETT, Executor of the Estate of ALLINE JOHNSON WIGGINS, Deceased v. SEABOARD AIR LINE RAILROAD COMPANY and L. E. ALEXANDER\nNo. 7110SC201\n(Filed 31 March 1971)\n1. Railroads \u00a7 5\u2014 grade crossing accident \u2014 instructions \u2014 duty of motorist to look and listen \u2014 inference that motorist stopped\nIn an action to recover for the death of a motorist resulting from an automobile-train collision at a grade crossing, the trial court did not err in instructing the jury that it is contributory negligence barring recovery for one to attempt to cross a railroad track without looking and listening when within the danger limits and when such looking and listening would be effective, and the court in its instructions gave plaintiffs the benefit of every inference fairly deducible from the evidence that plaintiffs\u2019 testate did stop before driving onto the tracks.\n2. Appeal and Error \u00a7 50\u2014 harmless error in instructions on negligence\nWhere the jury found that the negligence of defendant railroad was one of the proximate causes of an automobile-train collision in which plaintiffs\u2019 testate was killed, plaintiffs could not have been prejudiced by any error committed by the court in its instructions as to the negligence of defendant.\n3. Railroads \u00a7 5\u2014 hazardous grade crossing \u2014 duties of railroad and motorist\nWhile the maintenance of an unusually hazardous grade crossing places upon the railroad a duty of care commensurate with the danger created, the duty of care owed by a motorist at the crossing also increases commensurately.\nAppeal by plaintiffs from Clark, J., September 1970 Session, Wake Superior Court.\nThis is a civil action in which the plaintiffs seek to recover damages for the wrongful death of plaintiffs\u2019 testate, Alline Johnson Wiggins, and for certain personal property damage, allegedly resulting from an automobile-train collision in the town of Wake Forest, N. C., on 27 October 1964. The evidence pertinent to this appeal tends to show: The main line of the defendant\u2019s railroad running north and south bisects the Town of Wake Forest. The collision occurred at the intersection of the defendant\u2019s main line track and Sycamore Street. At this intersection there were three tracks, with the center track being the main line. Mrs. Wiggins approached the intersection from the east, traveling in a westerly direction, while the train approached from the north, traveling in a southerly direction. Along the eastern side of the railroad tracks and to the north of Sycamore Street was a ramp and overhead chute, designed so that trucks from sawmills could back up on the ramp and dump wood chips, which were then pumped into hopper cars belonging to the railroad. At the time of the accident, a hopper car was standing on the side track near the loading mechanism. The evidence tends to show that the view of the main line track to the north, as one approaches from the east on Sycamore Street, was obstructed by the hopper car until reaching a point just east of the main line from which point there was an unobstructed view of the main line north for a distance of 750 feet. A witness for the plaintiffs, who was working in a building near the crossing, testified that while looking out his side door, he saw Mrs. Wiggins\u2019 automobile approach the crossing, that the building then blocked his view and he was unable to see the car again until he looked out a rear door when he saw the automobile and the train collide. A witness for the defendants, who was a fireman on the train riding on the left side of the engine, testified that he saw the testate\u2019s automobile close to the side track moving at a slow rate of speed, that he \u201clooked right at that lady\u2019s head, and from the time that she came to my view, my eyes never left it. I was satisfied she would stop, but she didn\u2019t do it. ... I did not see her head turning either to the right or to the left during the time I observed it, looking straight ahead.\u201d\nThe court denied the defendants\u2019 motion for a directed verdict and submitted the case to the jury upon issues of negligence, contributory negligence, and damages. For its verdict, the jury found that the collision resulting in the fatal injuries to plaintiffs\u2019 testate, and the damage to her automobile, was proximately caused by the negligence of the defendants and the contributory negligence of the plaintiffs\u2019 testate.\nFrom a judgment entered on the verdict, the plaintiffs appealed.\nBailey, Dixon, Wooten & McDonald, by Wright T. Dixon, Jr., and John N. Fountain for plaintiff appellants.\nMaupin, Taylor & Ellis by Thomas F. Ellis for defendant appellees." }, "file_name": "0681-01", "first_page_order": 705, "last_page_order": 708 }