{
  "id": 8596975,
  "name": "HARRY COLLINGWOOD v. WINSTON-SALEM SOUTHBOUND RAILWAY COMPANY",
  "name_abbreviation": "Collingwood v. Winston-Salem Southbound Railway Co.",
  "decision_date": "1950-05-24",
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  "first_page": "192",
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  "last_updated": "2023-07-14T20:42:59.145817+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "HARRY COLLINGWOOD v. WINSTON-SALEM SOUTHBOUND RAILWAY COMPANY."
    ],
    "opinions": [
      {
        "text": "Devin, J.\nThe plaintiff\u2019s evidence was sufficient to carry the ease to the jury on the issue of defendant\u2019s negligence, but it is contended that defendant\u2019s motion for judgment of nonsuit should have been sustained for the reason that the contributory negligence of the plaintiff conclusively appears.\nHowever, we think the issue of contributory negligence was also one for the jury. Coltrain v. R. R., 216 N.C. 263, 4 S.E. 2d 853; Caldwell v. R. R., 218 N.C. 63, 10 S.E. 2d 680. The court properly could not sustain the motion to nonsuit on this ground unless the testimony tending to prove contributory negligence was so-clear that no other conclusion reasonably could be drawn therefrom. Winfield v. Smith, 230 N.C. 392, 53 S.E. 2d 251; Dawson v. Transportation Co., 230 N.C. 36, 4 S.E. 2d 921; Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307; Atkins v. Transportation Co., 224 N.C. 688, 32 S.E. 2d 209; Hampton v. Hawkins, 219 N.C. 205, 13 S.E. 2d 227; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637.\nPlaintiff testified that at the time he approached the crossing it was almost dark, 5 :40 p.m. December 17, and he had already turned on the lights on his automobile; that as he came to the crossing he slowed down almost to a complete stop and looked and listened for a train, and did not see or hear anything; that just as he drove on the track suddenly light flashed up from the on-coming locomotive, which, connected only with a tender, was moving noiselessly down grade, and a blast from the whistle was blown as he was struck; that while he was familiar with the crossing and the view in daylight was unobstructed, darkness at the time obscured the view of an approaching unlighted locomotive, and no warning signal of any kind was given. Considering his evidence in the light most favorable for him, we think the motion for judgment of nonsuit properly denied.\nDefendant assigns error in the charge of the court in that in stating generally the law as to the correlative duties of drivers of automobiles and railroad engines on approaching a grade crossing, the court stated principles of law based on facts which had no relation to those in evidence in this case. It is urged that this tended to suggest consideration by the jury of matters not in evidence, all to the prejudice of the defendant.\nWhile it was the duty of the court to confine his instructions to the law arising on the evidence in the case on trial (G-.S. 1-180), an examination of the entire charge of the court in the light of the evidence and the contentions of the litigants leaves us with the impression that no prejudicial effect from the instructions complaind of is apparent, and that the verdict was not improperly influenced thereby. The burden is on the appellant not only to show error, but also to make it appear that the error complained of was material with resultant harm to its cause. Collins v. Lamb, 215 N.C. 719, 2 S.E. 2d 863.\nWe have examined the other exceptions noted by defendant and brought forward in its assignments of error, but do not find them of sufficient moment to justify setting aside the verdict and judgment. The result will not be disturbed.\nIn the trial we find\nNo error.",
        "type": "majority",
        "author": "Devin, J."
      }
    ],
    "attorneys": [
      "II. C. Turner fox plaintiff, appellee.",
      "R. L. Smith & Son and Craige \u2022& Qraige for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "HARRY COLLINGWOOD v. WINSTON-SALEM SOUTHBOUND RAILWAY COMPANY.\n(Filed 24 May, 1950.)\n1. Negligence \u00a7 19c\u2014\nNonsuit on the ground of contributory negligence is proper only when plaintiff\u2019s own evidence establishes this defense so clearly that no other conclusion reasonably can be drawn therefrom.\n2. Railroads \u00a7 4\u2014\nPlaintiff\u2019s evidence to the effect that he had already turned on the lights of his car, that it was almost dark, that defendant\u2019s engine was moving noiselessly down grade, and that just as defendant drove upon the grade crossing light flashed up from the oncoming locomotive and its whistle was blown, but that it approached the crossing without light and without warning signal of any kind, is held not to establish contributory negligence as a matter of law.\n3. Trial \u00a7 31b\u2014\nWhile the trial court\u2019s instructions as to the law should be confined to that arising upon the evidence adduced at the trial, an examination of the entire charge in this case is held not to disclose prejudicial error in stating principles of law based on facts having no relation to those in evidence in the case.\n4. Appeal and Error \u00a7 38\u2014\nThe burden is on appellant not only to show error but also that the error complained of was material with resulting harm to its cause.\nAppeai. by defendant from Phillips, 'J., February Term, 1950, of Stanly.\nNo error.\nThis was an action to recover damages for a personal injury sustained by plaintiff when his automobile was struck by defendant\u2019s locomotive at a grade crossing.\nIt was alleged that this occurred at 5 :40-p.m. 17 December, 1948, when it was almost dark, and that defendant\u2019s locomotive approached the crossing without lights or signal. Defendant denied negligence and pleaded the contributory negligence of the plaintiff.\nIssues were submitted to the jury and answered in favor of the plaintiff, and from judgment on the verdict the defendant appealed. :\nII. C. Turner fox plaintiff, appellee.\nR. L. Smith & Son and Craige \u2022& Qraige for defendant, appellant."
  },
  "file_name": "0192-01",
  "first_page_order": 240,
  "last_page_order": 242
}