{ "id": 8955302, "name": "DAWN SHARP, Personal Representative of the Estate of DAVID SHARP, Plaintiff v. CSX TRANSPORTATION, INC., CSX CORPORATION, and R. A. JONES, Defendants", "name_abbreviation": "Sharp v. CSX Transportation, Inc.", "decision_date": "2003-09-02", "docket_number": "No. COA02-1094", "first_page": "241", "last_page": "246", "citations": [ { "type": "official", "cite": "160 N.C. App. 241" } ], "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": "327 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4722755, 4720327, 4725802, 4720632, 4724957 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0331-02", "/nc/313/0331-03", "/nc/313/0331-05", "/nc/313/0331-04", "/nc/313/0331-01" ] }, { "cite": "321 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "471-72", "parenthetical": "refusing to find contributory negligence as a matter of law when plaintiff presented evidence that the driver did not see the train coming because he was looking the other way while trying to see around an obstruction" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 200", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524680 ], "year": 1984, "pin_cites": [ { "page": "203", "parenthetical": "refusing to find contributory negligence as a matter of law when plaintiff presented evidence that the driver did not see the train coming because he was looking the other way while trying to see around an obstruction" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0200-01" ] }, { "cite": "192 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565633, 8565602, 8565539, 8565699, 8565561 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0425-04", "/nc/282/0425-03", "/nc/282/0425-01", "/nc/282/0425-05", "/nc/282/0425-02" ] }, { "cite": "192 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "11" } ], "opinion_index": 0 }, { "cite": "16 N.C. 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App.", "case_ids": [ 8550308 ], "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/nc-app/16/0294-01" ] }, { "cite": "136 S.E.2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1964, "pin_cites": [ { "page": "641" } ], "opinion_index": 0 }, { "cite": "262 N.C. 230", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566607 ], "year": 1964, "pin_cites": [ { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0230-01" ] }, { "cite": "542 S.E.2d 216", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155777, 1155943, 1155820, 1155759, 1155710 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0359-01", "/nc/351/0359-04", "/nc/351/0359-02", "/nc/351/0359-03", "/nc/351/0359-05" ] }, { "cite": "520 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "102" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 312", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240531 ], "year": 1999, "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0312-01" ] }, { "cite": "167 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "102" } ], "opinion_index": 0 }, { "cite": "4 N.C. App. 325", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553376 ], "year": 1969, "pin_cites": [ { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/nc-app/4/0325-01" ] }, { "cite": "138 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1964, "pin_cites": [ { "page": "231" } ], "opinion_index": 0 }, { "cite": "262 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569608 ], "year": 1964, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0550-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-142.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2001, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "356 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "380" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12121342 ], "year": 1987, "pin_cites": [ { "page": "4" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0001-01" ] }, { "cite": "540 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "419" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 273", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 11357693 ], "year": 2001, "pin_cites": [ { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0370-01" ] } ], "analysis": { "cardinality": 622, "char_count": 11638, "ocr_confidence": 0.772, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2127678100151785 }, "sha256": "1378a33b83a76f74886681256d41d8c0611a6be7facb4b9bd85c1a2a545ff231", "simhash": "1:3c25fe10002d3707", "word_count": 1920 }, "last_updated": "2023-07-14T16:12:23.823025+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and HUNTER concur." ], "parties": [ "DAWN SHARP, Personal Representative of the Estate of DAVID SHARP, Plaintiff v. CSX TRANSPORTATION, INC., CSX CORPORATION, and R. A. JONES, Defendants" ], "opinions": [ { "text": "GEER, Judge.\nIn this appeal, appellant Dawn Sharp asks us to reverse the trial court\u2019s order granting defendants\u2019 motion to dismiss. Defendants have contended that dismissal is appropriate because the complaint establishes contributory negligence as a matter of law. Applying the standards governing a motion to dismiss under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, we hold that the allegations of the complaint, taken as true, do not necessarily dictate a finding of contributory negligence and, therefore, we reverse.\nPlaintiff\u2019s complaint alleges the following facts. On 17 March 2000, David Sharp was driving a fire truck owned by the City of Fayetteville Fire Department back to his fire station. Under Fire Department policies, Sharp \u2014 who was alone in the truck \u2014 was required to return the truck to the fire station directly upon conclusion of a call.\nAs Sharp approached a railroad crossing on Cumberland Street, a locomotive owned by defendant CSX crossed Cumberland Street causing the crossing gate to descend across the roadway. The locomotive came to a stop with the last car sitting just north of the crossing. Because of where the train stopped, the crossing gate remained in a lowered position. In addition, the train obscured Sharp\u2019s view of the tracks to the north and the train acted as a barrier against any sound made by a train approaching from the north.\nAccording to the complaint, defendants have a widely known practice in Fayetteville of stopping their trains for extended periods of time in close proximity to crossing gates thereby causing the gates to remain lowered. This problem has occurred frequently and is widely known to residents and travelers in Fayetteville, including Sharp.\nThe complaint alleges that Sharp waited for an extended period of time to see if the train would move forward and allow the crossing gate to rise. Sharp believed that the crossing gate was remaining lowered only because of the CSX train. As Sharp was alone in the fire truck, he was prohibited by Fire Department policies from operating the truck in reverse. Since he was unable to back up the truck, Sharp decided to cross the tracks in order to return promptly and directly to the fire station. As Sharp began crossing the tracks, an Amtrak train, whose approach had been obscured by the CSX train, struck the fire truck, killing Sharp.\nSharp\u2019s wife, Dawn Sharp, filed suit on 15 March 2002 asserting a claim for negligence against defendants. Pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, defendants moved to dismiss on the grounds that the complaint established contributory negligence as a matter of law. Plaintiff appeals from the trial court\u2019s order granting that motion.\nWhen a party files a motion to dismiss pursuant to Rule 12(b)(6), the question for the court is whether the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not. Grant Constr. Co. v. McRae, 146 N.C. App. 370, 373, 553 S.E.2d 89, 91 (2001). The court must construe the complaint liberally and \u201cshould not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief.\u201d Block v. County of Person, 141 N.C. App. 273, 277-78, 540 S.E.2d 415, 419 (2000).\nDismissal under Rule 12(b)(6) is appropriate in three situations: (1) when it is apparent from the face of the complaint that no law supports plaintiffs claim; (2) when review of the complaint\u2019s allegations reveals the absence of a fact necessary to state a claim for relief; or (3) when the complaint alleges some fact that necessarily defeats plaintiffs claim. Johnson v. Bollinger, 86 N.C. App. 1, 4, 356 S.E.2d 378, 380 (1987). A complaint is considered sufficient under Rule 12(b)(6) when no \u201cinsurmountable bar\u201d to recovery appears on the face of the complaint and when the complaint\u2019s allegations give adequate notice of the nature and extent of plaintiff\u2019s claim. Id.\nIn this case, defendants argue that Sharp\u2019s violation of N.C. Gen. Stat. \u00a7 20-142.1 (2001) and the common law duty to yield the right of way to approaching trains constitutes contributory negligence as a matter of law. Because this case is at the motion to dismiss stage, we disagree.\nWhile N.C. Gen. Stat. \u00a7 20-142.1 prohibits any person from driving around or under a crossing gate, it also expressly provides that a violation of the statute is not negligence per se. Specifically, the statute states:\n(b) No person shall drive any vehicle through, around, or under any crossing gate or barrier at a railroad crossing while the gate or barrier is closed or is being opened or closed, nor shall any pedestrian pass through, around, over, or under any crossing gate or barrier at a railroad crossing while the gate or barrier is closed or is being opened or closed.\n(d) Any person who violates any provisions of this section shall be guilty of an infraction and punished in accordance with G.S. 20-176. Violation of this section shall not constitute negligence per se.\nN.C. Gen. Stat. \u00a7 20-142.1(b), (d) (emphasis added).\nDefendants\u2019 argument \u2014 that allegations in a complaint demonstrating a violation of this statute establish, without more, contributory negligence as a matter of law \u2014 is inconsistent with the General Assembly\u2019s mandate that the violation \u201cshall not constitute negligence per se.\u201d Id. As our Supreme Court has explained, when a statutory violation \u201cis declared not to be negligence per se, the common law rule of ordinary care applies, and a violation is only evidence to be considered with other facts and circumstances in determining whether the violator used due care.\u201d Cowan v. Murrows Transfer, Inc., 262 N.C. 550, 554, 138 S.E.2d 228, 231 (1964). The Court explained further: \u201cThe distinction, between a violation of a statute . . . which is negligence per se and a violation which is not, is one of duty. In the former the duty is to obey the statute, in the latter the duty is due care under the circumstances.\u201d Id.\nAs a result, the issue with respect to defendant\u2019s claim of contributory negligence, is whether Mr. Sharp exercised \u201cdue care under the circumstances.\u201d Id. The fact that Mr. Sharp bypassed the crossing gate in violation of the statute is evidence that may be considered, together with all of the other facts and circumstances, in deciding whether Mr. Sharp breached his common law duty of exercising ordinary care. Kinney v. Goley, 4 N.C. App. 325, 332, 167 S.E.2d 97, 102 (1969).\nSimilarly, the fact, standing alone, that Mr. Sharp did not yield the right of way to the oncoming Amtrak train does not establish his negligence as a matter of law at the motion to dismiss stage. Whenever a train and a car collide at a crossing, the car has failed to yield the right of way to the train. Yet, the driver is not always held to be con-trib\u00fatorily negligent. Instead, the courts look to all of the facts and circumstances: \u201cOur courts have encountered considerable difficulty in enunciating bright-line rules to govern liability in train-automobile grade crossing accidents. Consequently, each case is evaluated on its own facts.\u201d Parchment v. Garner, 135 N.C. App. 312, 315, 520 S.E.2d 100, 102 (1999), disc. review denied, 351 N.C. 359, 542 S.E.2d 216 (2000). Significantly, none of the cases cited by defendants involves the granting of a motion to dismiss a complaint.\nA court should dismiss a complaint based on contributory negligence only when the allegations of the complaint taken as true \u201cshow[] negligence on [the plaintiffs] part proximately contributing to his injury, so clearly that no other conclusion can be reasonably drawn therefrom.\u201d Ramey v. Southern Ry. Co., 262 N.C. 230, 234, 136 S.E.2d 638, 641 (1964). Given the allegations of the complaint in this case, Mr. Sharp\u2019s contributory negligence is not so clear that \u201cno other conclusion can be reasonably drawn therefrom.\u201d Id.\nThe complaint alleges that defendant had a practice of stopping trains in such a way that crossing gates remained down even though no hazard was present. Before crossing the tracks, Mr. Sharp stopped and waited \u201can extended period of time to see if the train would move forward and allow the crossing gates to rise.\u201d Further, according to the complaint, defendant\u2019s train blocked Mr. Sharp\u2019s ability to see and hear any train coming from the north.\nPlaintiff also argues that Mr. Sharp, since he was operating a fire truck, was exempt from the statutory requirement concerning railroad .crossings. This Court has held:\nOur research reveals that a majority of jurisdictions by statutes or ordinances exempt emergency vehicles (such as police cars, ambulances and fire department apparatus) from strict compliance with traffic regulations. However, the allowance of these special privileges (which include traveling through a red traffic light and exceeding speed limits) has been held generally not to relieve the operator of the emergency vehicle from the exercise of ordinary, reasonable care commensurate with the circumstances.\nCity of Winston-Salem v. Rice, 16 N.C. App. 294, 298, 192 S.E.2d 9, 11 (reversing trial court\u2019s order finding contributory negligence by the driver of a fire truck as a matter of law), cert. denied, 282 N.C. 425, 192 S.E.2d 835 (1972). In other words, the fact that Mr. Sharp needed to return a fire truck to the fire station is another factor that may be considered in deciding whether he used due care.\nThe complaint thus leaves open the question whether Mr. Sharp exercised due care in deciding to drive around the crossbar given his knowledge of defendant\u2019s customary practice, the obstruction of his view, and his need to return to the fire station. The allegations in plaintiff\u2019s complaint do not present an insurmountable bar to recovery. See Miller v. Davis, 71 N.C. App. 200, 203, 321 S.E.2d 470, 471-72 (1984) (refusing to find contributory negligence as a matter of law when plaintiff presented evidence that the driver did not see the train coming because he was looking the other way while trying to see around an obstruction), disc. review denied, 313 N.C. 331, 327 S.E.2d 892 (1985). The trial court therefore erred in granting defendants\u2019 motion to dismiss.\nReversed.\nJudges MARTIN and HUNTER concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Gill & Tobias, L.L.P., by Douglas R. Gill, for plaintiff-appellant.", "Millberg, Gordon & Stewart, P.L.L.G., by John C. Millberg and Dena White Waters, for defendants-appellees." ], "corrections": "", "head_matter": "DAWN SHARP, Personal Representative of the Estate of DAVID SHARP, Plaintiff v. CSX TRANSPORTATION, INC., CSX CORPORATION, and R. A. JONES, Defendants\nNo. COA02-1094\n(Filed 2 September 2003)\nRailroads\u2014 crossing accident \u2014 going around crossing gate\u2014 contributory negligence\nThe trial court erred by granting defendant\u2019s motion for dismissal under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) based upon contributory negligence in an action arising from a railroad crossing accident. A violation of N.C.G.S. \u00a7 20-142.1 is not negligence per se, and the complaint left open the question of whether the decedent, a fireman returning a fire truck to the station, exercised due care in deciding to drive around a crossbar given his knowledge of defendant\u2019s customary practice of stopping trains in such a way that crossing gates remained down even though no hazard was present, the obstruction of his view, and his need to return to the fire station.\nAppeal by plaintiff from order entered 29 May 2002 by Judge Jack A. Thompson in Cumberland County Superior Court. Heard in the Court of Appeals 21 May 2003.\nGill & Tobias, L.L.P., by Douglas R. Gill, for plaintiff-appellant.\nMillberg, Gordon & Stewart, P.L.L.G., by John C. Millberg and Dena White Waters, for defendants-appellees." }, "file_name": "0241-01", "first_page_order": 271, "last_page_order": 276 }