{ "id": 8628212, "name": "PHILLIP KELLER v. SOUTHERN RAILWAY COMPANY and W. T. DAVIS, Administrator of the Estate of A. J. KELLER, Deceased, v. SOUTHERN RAILWAY COMPANY", "name_abbreviation": "Keller v. Southern Railway Co.", "decision_date": "1933-10-11", "docket_number": "", "first_page": "269", "last_page": "280", "citations": [ { "type": "official", "cite": "205 N.C. 269" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "187 N. C., 648", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "202 N. C., 30", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623003 ], "opinion_index": 0, "case_paths": [ "/nc/202/0030-01" ] }, { "cite": "200 N. C., 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618024 ], "opinion_index": 0, "case_paths": [ "/nc/200/0177-01" ] }, { "cite": "196 N. C., 726", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629208 ], "opinion_index": 0, "case_paths": [ "/nc/196/0726-01" ] }, { "cite": "190 N. C., 429", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605817 ], "opinion_index": 0, "case_paths": [ "/nc/190/0429-01" ] }, { "cite": "187 N. C., 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653741 ], "opinion_index": 0, "case_paths": [ "/nc/187/0348-01" ] }, { "cite": "182 N. C., 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656667 ], "opinion_index": 0, "case_paths": [ "/nc/182/0536-01" ] }, { "cite": "167 N. C., 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273626 ], "opinion_index": 0, "case_paths": [ "/nc/167/0611-01" ] }, { "cite": "195 N. C., 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628328 ], "opinion_index": 0, "case_paths": [ "/nc/195/0190-01" ] }, { "cite": "193 N. C., 691", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217750 ], "opinion_index": 0, "case_paths": [ "/nc/193/0691-01" ] }, { "cite": "204 N. C., 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616904 ], "opinion_index": 0, "case_paths": [ "/nc/204/0303-01" ] }, { "cite": "202 N. C., 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627158 ], "opinion_index": 0, "case_paths": [ "/nc/202/0478-01" ] }, { "cite": "201 N. C., 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627441 ], "opinion_index": 0, "case_paths": [ "/nc/201/0672-01" ] }, { "cite": "201 N. C., 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622783 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/201/0102-01" ] }, { "cite": "203 N. C., 245", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606859 ], "opinion_index": 0, "case_paths": [ "/nc/203/0245-01" ] }, { "cite": "200 N. C., 784", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626269 ], "opinion_index": 0, "case_paths": [ "/nc/200/0784-01" ] }, { "cite": "199 N. C., 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613193 ], "opinion_index": 0, "case_paths": [ "/nc/199/0695-01" ] }, { "cite": "197 N. C., 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630784 ], "opinion_index": 0, "case_paths": [ "/nc/197/0628-01" ] }, { "cite": "199 N. C., 798", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616174 ], "opinion_index": 0, "case_paths": [ "/nc/199/0798-01" ] } ], "analysis": { "cardinality": 1041, "char_count": 31200, "ocr_confidence": 0.462, "pagerank": { "raw": 2.0575747136076348e-07, "percentile": 0.756118020780362 }, "sha256": "cb6567156477512545d6c3ed9124fdf7ea2977664c909f34ee7e796537cfe93c", "simhash": "1:3216bc40067a8c5b", "word_count": 5457 }, "last_updated": "2023-07-14T16:12:31.066060+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PHILLIP KELLER v. SOUTHERN RAILWAY COMPANY and W. T. DAVIS, Administrator of the Estate of A. J. KELLER, Deceased, v. SOUTHERN RAILWAY COMPANY." ], "opinions": [ { "text": "Clarkson, J.\nThese are actions for actionable negligence alleging damages. The plaintiff, Phillip Keller, instituted this action in the Superior Court of Madison County, against \u2019the Southern Eailway Company, on 19 July, 1932, and filed his complaint, alleging two causes of action. In his first cause of action he alleges that he was operating an automobile truck and drove upon the track of the defendant, Southern Eailway Company, in the town of Hot Springs, and was struck and injured, and demands judgment in the sum of $2,650. In his second cause of action he alleges that his truck was demolished by reason of the impact set forth in his first cause of action, and that he sustained damages in the sum of $350.00 to his truck.\nOn tbe same date ~W. T. Davis, administrator of tbe estate of A. J. Heller, deceased, instituted an action in tbe Superior Court of Madison County against tbe Southern Railway Company, and filed bis complaint on said date, alleging that A. J. Keller, an old man 75 years of age, was a passenger in tbe automobile driven by Pbillip Keller, tbe owner of tbe truck, and that plaintiff\u2019s intestate was killed in said collision, and judgment was demanded in tbe sum of $3,000.\nIn botb actions, all tbe issues were found in favor of tbe plaintiffs, and judgments rendered on tbe verdicts in favor of tbe plaintiffs.\nAt tbe close of plaintiffs\u2019 evidence and at tbe close of all tbe evidence, tbe defendant made motions for judgment as in case of nonsuit. C. S., 567. Tbe court below overruled these motions and in this we can see no error. It is a well settled rule that upon a motion as of nonsuit tbe evidence, whether offered by tbe plaintiff or elicited from defendant\u2019s witnesses, is to be considered in tbe light most favorable to tbe plaintiff, and be is entitled to every reasonable intendment thereon and every reasonable inference to be drawn therefrom. We set forth tbe complaint in full, without going into a lengthy detail of tbe evidence, as we think tbe evidence on tbe material allegations in tbe complaint sufficient to have been submitted to tbe jury. There is a discrepancy between tbe complaint and evidence as to tbe course of tbe highway and railroad. In the' opinion we will treat tbe highway as running east and west and railroad north and south. Pbillip Keller, tbe plaintiff, lived about 3 miles from Hot Springs, N. C., and on tbe morning of 3 May, 1932, between 7 and 8 o\u2019clock, was on bis way to Greenville, Tenn., driving a 1930 \u201cA\u201d model Ford truck. It bad been a coupe and bad been changed into a light delivery truck, which be ordinarily used for hauling wood. He was at tbe wheel, and next to him was bis father, A. J. Keller, and sitting next to bis father was Terrell Ricker. He was driving west through Hot Springs on a bard-surfaced State highway, \u201ctbe main artery east and west.\u201d Tbe village bad a population (1930 census) of 725.\nTbe defendant\u2019s railroad track, which runs north and south, crosses this highway. Each day 100 to 500 cars and 400 to 500 pedestrians cross tbe defendant\u2019s track on this highway. On each side of tbe track defendant has a signal post with a red warning light, with tbe word \u201cStop\u201d and a green light with tbe word \u201cGo.\u201d Defendant ran about 25 trains over this track a day. Approaching tbe defendant\u2019s track, going west, tbe highway goes up a slight incline until it reaches tbe defendant\u2019s track, and it is level and then a decline downward. Tbe view of a traveler on tbe highway going west is obstructed by defendant\u2019s depot, trees and shrubbery, in seeing a train going north on defendant\u2019s track, until very near tbe track.\nPlaintiff testified, in part: \u201cI was going west, going to Tennessee, as I drove towards tbe track; tbe light was green, it said \u201cGo\u201d and I drove upon tbe track slowly, was making 6 or 8 miles an hour. I was on tbe mountain side, tbe right-band side of tbe highway, and just as ive got up there, we were going on tbe track, and tbe train came up at a rapid speed, must have been making about 30 miles an hour; it bit us and knocked us over against tbe signal post. . . . That crossing is right there at tbe main public square of tbe town, and as I was going-up to tbe crossing to cross tbe crossing there you go between buildings, on both sides it is a close space. I was going towards Tennessee; you can\u2019t see a train coming until you are right on tbe track. ... It may be 16 feet from tbe railroad back to tbe depot. . . . Tbe shrubbery keeps you blinded from seeing tbe train until you get to tbe depot, and that garage and you can\u2019t see at all until you enter right on tbe track. . . . Just shrubbery and trees. ... In tbe complaint, I alleged, That tbe green light, as I came to tbe track, with a defective hood, so as to cause tbe sun\u2019s rays to shine against tbe glass of tbe said signal rendered it difficult to tell whether tbe signal was showing red or green.\u2019 ... I know I drove up there and tbe light showed to be green, looked green to me; well, it was a green light. I could tell them apart that morning and tbe light showed green. It was not bard to tell whether it was a green or a red light that morning when I drove up there. ... I know tbe green light was tbe only one I could see that was burning bright at that time. . . . The light shined against both and showed against them both and that was because they were poorly hooded, and that is true, and when I told him tbe sun was shining against those two' lights, making it hard to tell which was the green or red, I told him the truth, and I told hi in that was the condition the day I went on there, on the morning I drove up there the light did show green then. . . . You could always see both lights if the sun was shining, but the green light showed plain that morning. The red light when you see 'stop\u2019 that says stop, and if 'go\u2019 it is on the green light, you drive on, and I saw 'go\u2019 on the green light and drove on. ... I cut the gas off and it rolled up on the track. I got the four wheels on the track and saw the train coming and I then socked the gas on it; when I saw the train I was going about from 4 to 8 miles; it had just been a short distance behind that I cut the gas off, I cut the gas off about 25 or 30 feet back of that, but I was driving-slow coming up there. ... I put the gas to it to get across and, it hit the back end; from the time I saw the train 30 feet from me, until it hit me, I went about half the distance of the car, and my car was 8 to 10 feet. I will say I drove 8 feet, while the train drove 20, but I saw it was all the way I could do. ... I just let up on the gas as I started upon the tracks; my engine was running*; I just took my foot off tke gas and eased up on tbe tracks. As you approach that building, and as you approach the front of it, you can\u2019t see any of the track until you get in front of the depot.\u201d\nThe evidence on the part of plaintiff was to the effect that plaintiff, Phillip Keller, and his witnesses, heard no' whistle blow or bell ring.\nIn Harris v. R. R., 199 N. C., 798 (799), is the following: \u201cThe law in this State does not impose upon the driver of a motor vehicle, on his approach to a public crossing, the duty, under all circumstances, to stop his vehicle before driving on the crossing. Whether under all the circumstances, as the evidence tends to show, and as the jury may find from the evidence, the failure of the driver to stop, as well as to look and listen for an approaching train at a railroad crossing, was negligence on his part, is ordinarily a question involving matters of fact as well as of law, and must be determined by the jury under proper instructions from the court.\u201d N. C. Code of 1931 (Michie), section 2621(48); Moseley v. R. R., 197 N. C., 628; Butner v. R. R., 199 N. C., 695; Madrin v. R. R., 200 N. C., 784, S. c., 203 N. C., 245; Campbell v. R. R., 201 N. C., 102; Sanders v. R. R., 201 N. C., 672; Baker v. R. R., 202 N. C., 478; Dancy v. R. R., 204 N. C., 303.\nPlaintiff testified: \u201cI was going west, going to Tennessee, as I drove towards the track; the light was green, it said to \u2018Go\u2019 and I drove upon the track slowly, was making 6 or 8 miles an hour,\u201d etc.. The light being green and saying \u201cGo,\u201d plaintiff had a right to presume that it was an assurance of safety and that the crossing was clear, and to act with reasonable caution, such as an ordinarily prudent man would use under like circumstances, and drive on the crossing. Barber v. R. R., 193 N. C., 691; Finch v. R. R., 195 N. C., 190 (199); Moseley v. R. R., supra, at p. 635.\nThe defendant contends that in reference to A. J. Keller, who was a passenger in the automobile, it was entitled to an issue of contributory negligence. We cannot so hold. A. J. Keller was in the automobile and the father of the driver, Phillip Keller, who testified: \u201cMy father did not own any interest in that car; he had no control over my driving that car, and did not attempt to exercise any control over my driving that ear. I certainly knew how to operate the automobile properly.\u201d\nIn Campbell v. R. R., 201 N. C., 102 (107), it is said: \u201cPlaintiff was a guest or gratuitous passenger. It is well settled that \u2018negligence on the part of the driver will not, ordinarily, be imputed to a guest or occupant of an automobile unless such guest or occupant is the owner of the car or has some kind of control of the driver. Bagwell v. R. R., 167 N. C., 611; White v. Realty Co., 182 N. C., 536; Williams v. R. R., 187 N. C., 348; Albritton v. Hill, 190 N. C., 429. Of course, if the negligence of the driver is the sole, only proximate canse of the injury, the injured party could not recover.' Earwood v. R. R., 192 N. C., at p. 30; Dickey v. R. R., 196 N. C., 726.\u201d Smith v. R. R., 200 N. C., 177 (180).\nIn Nash v. R. R., 202 N. C., 30 (33), we find: \u201cLouise Nash was a gratuitous passenger or guest in the automobile driven by Sarah Adams. She was not the owner of the car and had no control of it; neither is there evidence that the deceased was engaged in a joint enterprise with the driver or other occupant of the car. Consequently, any negligence on the part of the driver would not be imputed to the deceased.\u201d\nIn regard to defendant\u2019s having a different light at another crossing, Ave do not think this prejudicial. The defendant brought out the same fact on cross-examination of one of plaintiff\u2019s witnesses. See Blum v. R. R., 187 N. C., 648. We think the court beloAv properly refused defendant\u2019s prayers for special instructions. The charge was full, clear and gave the laAV applicable to the facts. In the judgment below Ave find\nNo error.", "type": "majority", "author": "Clarkson, J." }, { "text": "Brogden, J.,\ndissenting: The plaintiff Keller testified on cross-examination as follows:\n\u201cI told Mr. Pritchard my attorney, before he drafted the complaint, that the sun was shining against these lights that morning and it was hard to tell the green from the red. That is true, I told him that.\n\u201cQ. So then on that morning, Mr. Keller, both lights were showing there, the sun shining? Answer: Yes the sun was shining that morning.\n\u201cQ. (By the court.) He asked you whether both lights were shoAving, because the sun was shining against them? Answer: Both lights were shoAving more, but the green light was showing most. The red light did not show plain but the green light did.\n\u201cThe red light did not show plain, but it showed a little bit, not plain like you could see the green one. To a certain extent you could see both lights. When the red is showing it sometimes is dim, but before I went on the track I could see the red light some little bit but the green light showed the brightest.\n\u201cThe sun shined against both and showed against them both and that was because they were poorly hooded, and that is true, and when I told him the sun was shining against those two lights, making it hard to tell Avhich Avas on the green or red. I told him the truth, and I told him that Avas the condition the day I Avent on there, on the morning I drove up there the light did show green then. Afterward I have been going back and foi-Avard across there to see Avhat caused this accident, and I seen .the reflection of the sun, it caused both lights to shoAv bright and you could not tell much, about them at all; but when I drove up' there the morning of the accident, the green light did show brightest, the green light showed to be the brightest and I drove on and had the accident.\u201d\nConsequently, from the plaintiff\u2019s own narrative, there was a confusion of signals. One said \u201cgo ahead, the way is clear.\u201d Another said: \u201cStop! a train is upon you.\u201d\nUnder such circumstances, what ought a man of reasonable prudence to do ? The plaintiff chose to gamble with the situation and thus moved ahead at his peril and therefore ought to abide the result of his own calm deliberate act.", "type": "dissent", "author": "Brogden, J.," } ], "attorneys": [ "George M. Pritchard and J ames E. Rector for plaintiffs.", "R. G. Kelly and Jones & Ward for defendant." ], "corrections": "", "head_matter": "PHILLIP KELLER v. SOUTHERN RAILWAY COMPANY and W. T. DAVIS, Administrator of the Estate of A. J. KELLER, Deceased, v. SOUTHERN RAILWAY COMPANY.\n(Filed 11 October, 1933.)\n1. Trial D a \u2014 On motion of nonsuit all evidence is to be considered in light most favorable to plaintiff.\nOn a motion as of nonsuit all the evidence, whether offered by plaintiff or elicited from defendant\u2019s witnesses, is to be considered in the light most favorable to plaintiff, and he is entitled to every reasonable in-tendment thereon and every reasonable inference therefrom. C. S., 567.\n2. Railroads D b \u2014 'Whether motorist\u2019s failure to stop at crossing was contributory negligence held for jury under evidence in this case.\nA driver of an automobile is not required under all circumstances to stop before driving upon a railroad grade crossing, and whether he is required to do so under the particular circumstances disclosed by the evidence is ordinarily a mixed question of law and fact to be submitted to the jury upon proper instruction from the court, and in this case, under evidence tending to show that by reason of a defective hood on an automatic electric signal at a much used crossing the green signal with the word \u201cgo\u2019\u2019 was lighted by the rays of the sun, the question of whether the driver was guilty of contributory negligence in failing to stop was properly submitted to the jury under the rule of that degree of care that an ordinarily prudent man would have observed for his own safety under the circumstances, the fact that the green signal was lighted being an assurance of safety to the driver. N. C. Code, 1931, sec. 2621(47).\n3. Automobile C j \u2014 Negligence of driver may not be imputed to guest where guest has no control or management of car.\nIn an action by an administrator of a guest killed in a collision between the automobile in which he was riding and defendant\u2019s railroad train at a public crossing, the issue of contributory negligence, tendered on the theory that the driver\u2019s negligence was imputed to the guest, is properly refused where the evidence discloses that the car was being driven independently by the owner and that the guest had no control over its operation.\n4. Appeal and Error J c \u2014 Exception, to admission of evidence will not be sustained where objecting party elicits evidence of same import.\nIn this action for damages brought against a railroad company for the negligent killing of plaintiff\u2019s intestate at a public crossing by reason of a defective automatic electrical signal, an exception to the admission of evidence as to the condition of a signal at another such crossing is not sustained, it appearing that defendant had brought out similar evidence upon cross-examination.\nBrogden, J., dissenting.\nAppeal by defendant from Clement, J., and a jury, at October Term, 1932, of MadisoN. No error.\nTbe complaint of plaintiff in Keller v. Railway Co., is as follows:\n\u201cFor a first canse of action, tbe plaintiff, complaining of the defendant, says:\n1. That tbe defendant is a corporation created and existing under tbe laws of tbe State of Virginia, and as such is authorized to do business in tbe county and state aforesaid as a common carrier of freight and passengers for hire.\n2. That plaintiff is a citizen and resident of tbe county of Madison, State of North Carolina.\n3. That at tbe time hereinafter mentioned tbe defendant as such daily operated approximately twenty-five trains over its track laid through the town of Hot Springs.\n4. That defendant\u2019s said track runs east and west alongside tbe main street of said town and close to and on tbe south side of defendant\u2019s depot, which depot is located in tbe very heart of the business section of said town.\n5. That a public highway leading from North Carolina into Tennessee and the west crosses defendant\u2019s said track in a southward direction from the French Broad River, and is flanked immediately on the west by the defendant\u2019s depot, and immediately on the east by defendant\u2019s building known as the supervisor\u2019s house, both the said depot and supervisor\u2019s house being on the north side of defendant\u2019s track, and so close thereto as to barely admit of the passage of defendant\u2019s train; that the public highway is very narrow and passes between said depot and supervisor\u2019s house immediately before one crosses said tracks traveling south on said highway.\n6. That the defendant\u2019s track from the east end of said depot west-wardly is so completely hidden from view by said depot and by trees and shrubbery that at no time in approaching said crossing and traveling upon said highway from said river can the driver .of an automobile see said track to the west of the east end of said depot, or see trains approaching said crossing from a westerly direction until after his automobile enters upon defendant\u2019s track at said crossing.\n7. That owing to the obstruction of one\u2019s view by said depot, supervisor\u2019s house, trees and shrubbery, the said crossing to one traveling south is a blind and dangerous crossing.\n8. That the town of Hot Springs numbers many hundred of inhabitants and is a trade center for the entire surrounding country, while said highway not only carries the local' pedestrian and vehicular traffic of a populous community, but is also the main artery of travel from Tennessee and all points west, and as a consequence many hundreds of pedestrians and automobiles are constantly crossing the defendant\u2019s track at said crossing, and defendant operates daily over its said track approximately twenty-five trains \u2014 all of wbicb was and is well known to defendant, and rendered it imperative tbat defendant in tbe exercise of ordinary care use great precaution to prevent injury to persons crossing its said track at said crossing.\n9. Tbat tbere are in common and general use by defendant and all other railways for tbe protection of persons crossing railway tracks at suck dangerous crossing, gates witb watchmen, or gongs to warn persons of tbe approach of trains; yet tbe defendant negligently and carelessly failed to provide either gongs or gates witb watchmen at said crossing, when tbe defendant knew or should have known tbat such precautions were reasonably necessary to protect tbe traveling public against injury at said blind crossing.\n10. Tbat although defendant\u2019s own buildings obstructed and rendered said crossing extremely hazardous and dangerous to tbe hundreds of pedestrians and automobiles daily passing over tbe same, tbe defendant negligently and carelessly failed to provide gates and watchmen, or gongs thereat to warn such pedestrians and automobiles of tbe approach of tbe defendant\u2019s numerous trains daily passing over defendant\u2019s said track and crossing, and instead installed and maintained at said crossing a red and green light electrical signaling system, wbicb system was defective, dangerous, unsafe, misleading, and made of said crossing a veritable death trap in tbat:\nFirst: The red and green lights on the north side of said track were defectively hooded and placed so as to admit and cause the sun\u2019s ray to shine directly against the glass of said signals, and thus to render it difficult to ascertain whether the signals were showing bed\u2019 or 'green.\u2019\nSecond: The hood and lighting device of said red and green signals were defective in that they did not darken the red glass when the green was showing and vice versa.\nThird: The mechanism of said signaling system was negligently permitted by defendant to become and remain out of repair, defective and dangerous for a long time immediately prior to, as well as at the time of the injuries hereinafter mentioned, so that at said times the green signal showed 'green\u2019 at all times when defendant\u2019s trains were approaching and traversing said crossing, instead of showing \u25a0 'red\u2019 when trains were approaching said crossing, as would have been the case had said system and the mechanism thereof been in good repair and working order.\n11. That defendant also negligently and carelessly failed to properly inspect and supervise said signaling system so as to keep the same in repair and good working order at all times, because it knew, or should have known, that its failure so to do would likely result in injury to persons and automobiles upon said crossing.\n12. That on 3 May, 1932, the plaintiff, driving bis truck southward along said public highway, approached said crossing in a lawful and cautious manner, looking and listening and carefully observing the signal light on the north side of defendant\u2019s track and perceiving the same to he showing 'green\u2019 which indicated that no trains were approaching, and hearing no warning signal by any bell, whistle or otherwise by any train, entered upon said track, when one of defendant\u2019s trains proceeding from a westerly direction at a high, negligent, reckless, dangerous and terrific rate of speed dashed against plaintiff\u2019s automobile hurling the same violently against the iron signal post on the south side of said track, completely demolishing plaintiff\u2019s truck and killing plaintiff\u2019s father and one Terrell Bicker, who were also occupants of said truck, and seriously and permanently injuring plaintiff, as will hereinafter more fully appear.\n13. That the plaintiff was actively induced by said defendant\u2019s 'green\u2019 signal to drive upon its track at said crossing, and was prevented from seeing said approaching train by reason of said trees, shrubbery and defendant\u2019s said buildings negligently maintained by defendant so as to obstruct one\u2019s view in approaching from said river and entering upon defendant\u2019s track.\n14. That defendant\u2019s engineer, fireman, and other agents, servants and vice-principals in charge of and operating said train at the time of striking plaintiff\u2019s truck not only negligently operated the same at said high rate of speed, and without sounding any bell, whistle, or other signal at any time upon approaching said crossing, but also negligently failed to keep a proper lookout ahead, and to so operate said train as to control, promptly slacken the speed of, or to stop same in case of an, emergency.\n15. That had defendant\u2019s said agents, servants and vice-principals operated said train at a reasonable rate of speed, and have had same under proper control, and have kept a proper lookout ahead they could and should have stopped, or at least have slackened the speed thereof, after plaintiff was induced to enter upon said track as aforesaid, so as to have averted demolishing said truck and injuring the plaintiff and other occupants thereof.\n16. That plaintiff\u2019s truck was struck by defendant\u2019s train by reason of defendant\u2019s and defendant\u2019s agents\u2019 said acts of negligence, and as a consequence thereof plaintiff received serious and permanent lacerations, contusions, disfigurements and injuries to his face, head, scalp, neck, shoulders, body, limbs, spine, internal organs and nervous system, lost large quantities of blood, was committed to a hospital where his wounds were stitched and where for many days he underwent painful treatment of his said injuries, was compelled to incur much expense in the treatment of said injuries, and for doctor\u2019s bills, medicines, and hospital treatment, was left permanently sick, sore and disordered, lias lost much time from his work, and is seriously and permanently incapacitated therefor, and has suffered and will continue to suffer great mental anguish and physical pain, all to his damage in the sum of $2,650..\nAnd for a second cause of action, plaintiff says:\n1. That plaintiff is a citizen and resident of said county and State.\n2. That defendant is a corporation under the laws of the State of Virginia.\n3. That the plaintiff adopts and incorporates as a part of this cause of action each and every allegation of the first cause of action, except paragraph No. 16.\n4. That on 3 May, 1932, the plaintiff, after looking and listening and hearing no signals by any approaching train, nor seeing any train, and observing that defendant\u2019s electric light signaling system at the public highway crossing at its depot in the heart of the business section of the town of Hot Springs, county and State aforesaid, was showing 'green\u2019 (which is the signal to go) and being induced by said factors to do so, entered upon defendant\u2019s track at said crossing and was in the act of crossing the same going southward when one of the defendant\u2019s trains, being operated at a high, negligent, dangerous and unlawful rate of speed by the defendant\u2019s agents and servants in charge thereat, and having sounded no signal of any kind to warn plaintiff, driving against plaintiff\u2019s said truck from the west, striking the same a terrific blow and completely demolishing, damaging and destroying said truck.\n5. That plaintiff was prevented from seeing said approaching train by reason of defendant\u2019s track being obstructed by trees and shrubbery, and by defendant\u2019s buildings negligently constructed close to and maintained on either side of said highway at said crossing, although defendant knew that about twenty-five of its trains daily passed over said crossing, and also that same was daily used by hundreds of pedestrians and automobilists.\n6. That defendant\u2019s signaling system was defective, dangerous, unsafe and misleading, as set out in paragraph 10 of the plaintiff\u2019s first cause of action.\n7. That had defendant\u2019s agents and vice-principals operated its said train at a reasonable rate of speed, have given timely signals, and kept a proper lookout ahead, they could have discovered plaintiff\u2019s perilous position on said track and could have stopped or slackened the speed of said train and thus have averted the destruction of the plaintiff\u2019s said truck, but instead negligently failed to do so.\n8. That plaintiff\u2019s said truck was destroy\u00e9d by defendant\u2019s said negligence and was of the reasonable market value of $350.00.\n'Wherefore, plaintiff prays judgment under his first cause of action for the sum of $2,650, and under his second cause of action for $350.00, and for the costs of the actions to be'taxed by the clerk.\nIn answer, the defendant denied the material allegations of the complaint, set up the plea of contributory negligence, and further set up a violation of N. C. Code, 1931 (Michie, sec. 2621(47) \u2014 (railroad warning signals must be observed) \u201cwas the direct and sole proximate cause of any injury he (plaintiff) sustained, and said conduct is specifically pleaded in bar of plaintiff\u2019s right to recover herein.\u201d\nThe defendant further says \u201cThat at the time of said accident said lights were in perfect condition and that as the plaintifE approached said crossing said signal light was red, which was a warning to him that said train would immediately go over the said crossing.\u201d\nThese matters were set up in bar of recovery.\nIn the companion case of Davis, Admr., v. Railway Co., the complaint and answer involved the same feature of complaint and defense, except that plaintiff alleges that \u201cthe plaintiff\u2019s intestate was an occupant or passenger of a truck being driven southward along said public highway in the direction of said crossing; that plaintiff\u2019s intestate had no control or authority over said driver or said truck,\u201d etc.\nIn answer defendant says: \u201cThat if the plaintiff\u2019s intestate was injured and killed, it was due:\n(a) To the result of his own negligence and the negligence of his agent, companion and joint adventurer in going upon the track of the defendant in the face of the approaching train, without exercising a proper lookout and due care for his own safety.\n(b) To his contributory negligence in failing to stop, look and listen for the approaching train, which was in full view until he went upon the tracks of the defendant;, and in that his agent, companion and joint adventurer failed to stop, look and listen for the approaching train, and plaintiff\u2019s intestate recklessly, heedlessly and negligently allowed, permitted and acquiesced in his companion and joint adventurer, to wit, Phillip Keller, driving said automobile upon said railroad tracks, and said negligence of plaintiff\u2019s intestate and his agent and joint adventurer contributed to and proximately caused the injury and death of plaintiff\u2019s intestate, and such contributory negligence is hereby pleaded as a bar to any recovery in this action.\n(c) To his contributory negligence proximately causing his injury and death in that he rode in said motor vehicle willingly and concurred or acquiesced in the reckless driving of the same by his companion.\nThat the driver of said automobile, Phillip Keller, was\u2019 a reckless, dangerous and indifferent driver of automobiles and trucks; that plaintiff\u2019s intestate was in the habit of riding with his said son, Phillip Keller, and knew and appreciated the fact that the said Phillip Keller was a reckless, dangerous and indifferent driver, and notwithstanding such knowledge on his part plaintiff\u2019s intestate on this occasion rode with the said driver, realizing at the time that to do so was dangerous, and that said driver was likely, through his negligence, to cause a serious accident at any time.\u201d\nThe issues submitted to the jury and their answers thereto, in the first and second cause of action, were as follows:\n(1) Was the plaintiff, Phillip Keller, injured by the negligence of the defendant as alleged in the complaint? Answer: Yes.\n(2) Did the plaintiff, Phillip Keller, by his own negligence contribute to the injury he sustained as alleged in the complaint ? Answer: No.\n(3) What damage, if any, is the plaintiff, Phillip Keller, entitled to recover of the defendant for injuries done to his person ? Answer: $1,225.\n(4) What damage, if any, is the plaintiff Phillip Keller, entitled to recover for damages done to his truck? Answer: $156.25.\u201d\nThe issues submitted to the jury and their answers thereto, in the second action, were as follows:\n(1) Was A. J. Keller, deceased, killed by the negligence of the defendant, as alleged in the complaint? Answer: Yes.\n(2) What damage, if any, is W. T. Davis, administrator of A. J. Keller, entitled to recover of the defendant, Southern Eailway Company? Answer: $750.00.\nThe court below rendered judgments on the verdicts. The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.\nGeorge M. Pritchard and J ames E. Rector for plaintiffs.\nR. G. Kelly and Jones & Ward for defendant." }, "file_name": "0269-01", "first_page_order": 333, "last_page_order": 344 }