{ "id": 8610658, "name": "J. HOMER BEAMAN v. SOUTHERN RAILWAY COMPANY and G. W. MORRIS", "name_abbreviation": "Beaman v. Southern Railway Co.", "decision_date": "1953-10-21", "docket_number": "", "first_page": "418", "last_page": "422", "citations": [ { "type": "official", "cite": "238 N.C. 418" } ], "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": "61 S.E. 2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 472", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606071 ], "opinion_index": 0, "case_paths": [ "/nc/232/0472-01" ] }, { "cite": "94 S.E. 713", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "175 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661633 ], "opinion_index": 0, "case_paths": [ "/nc/175/0694-01" ] }, { "cite": "200 S.E. 21", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "214 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632192 ], "opinion_index": 0, "case_paths": [ "/nc/214/0580-01" ] }, { "cite": "76 S.E. 2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "237 N.C. 734", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618969 ], "opinion_index": 0, "case_paths": [ "/nc/237/0734-01" ] }, { "cite": "8 S.E. 2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "217 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607321 ], "opinion_index": 0, "case_paths": [ "/nc/217/0351-01" ] }, { "cite": "75 S.E. 2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "237 N.C. 347", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611197 ], "opinion_index": 0, "case_paths": [ "/nc/237/0347-01" ] }, { "cite": "63 S.E. 2d 630", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 255", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603405 ], "opinion_index": 0, "case_paths": [ "/nc/233/0255-01" ] }, { "cite": "10 S.E. 2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "218 N.C. 204", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615957 ], "opinion_index": 0, "case_paths": [ "/nc/218/0204-01" ] }, { "cite": "198 S.E. 624", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "214 N.C. 206", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629562 ], "opinion_index": 0, "case_paths": [ "/nc/214/0206-01" ] }, { "cite": "195 S.E. 789", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627481 ], "opinion_index": 0, "case_paths": [ "/nc/213/0240-01" ] }, { "cite": "192 S.E. 105", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "191 S.E. 353", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628228 ], "opinion_index": 0, "case_paths": [ "/nc/211/0591-01" ] }, { "cite": "156 S.E. 530", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "200 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620334 ], "opinion_index": 0, "case_paths": [ "/nc/200/0293-01" ] }, { "cite": "36 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2097098 ], "opinion_index": 0, "case_paths": [ "/nc/36/0313-01" ] }, { "cite": "238 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599580 ], "opinion_index": 1, "case_paths": [ "/nc/238/0089-01" ] } ], "analysis": { "cardinality": 586, "char_count": 9991, "ocr_confidence": 0.467, "pagerank": { "raw": 1.2494532184924678e-07, "percentile": 0.6097336176742351 }, "sha256": "a802a1194e250dbd2efcef7c6be58d039189c89e19cdb05c984ad91882d1dffb", "simhash": "1:73e0882a121daffe", "word_count": 1790 }, "last_updated": "2023-07-14T17:58:50.226870+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WiNboene, J., took no part in tbe consideration or decision of tbis case.", "JOHNSON, J., concurs in dissent." ], "parties": [ "J. HOMER BEAMAN v. SOUTHERN RAILWAY COMPANY and G. W. MORRIS." ], "opinions": [ { "text": "Barnhill, J.\nThat the testimony offered by plaintiff, considered in the light most favorable to him, discloses negligence on the part of defendant may be conceded. If the judgment of nonsuit is to be sustained, it must be sustained for the reason plaintiff was guilty of contributory negligence as a matter of law.\nOn this phase of the case we must admit that this appeal presents a close question. It is a borderline case in which the presumption the trial judge ruled correctly must be considered in determining whether the' appellant has shown prejudicial error. . , . .\n\u201cEvery decision of a competent court must be deemed to be according to the law and the truth of the case until the contrary is shown.\u201d Gaston, J., Wade v. Dick, 36 N.C. 313.\nOn an appeal, error will not be presumed. Hayes v. Lancaster, 200 N.C. 293, 156 S.E. 530; Cole v. R. R., 211 N.C. 591, 191 S.E. 353; Manufacturing Co. v. Call, 211 N.C. 130, 192 S.E. 105. Instead, \u201cthe ruling of the court below in the consideration of an appeal therefrom is presumed to he correct.\u201d Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789; Warren v. Land Bank, 214 N.C. 206, 198 S.E. 624.\nThe burden is on the appellant, Cole v. R. R., supra; Gold v. Kiker, 218 N.C. 204, 10 S.E. 2d 650; Gibson v. Dudley, 233 N.C. 255, 63 S.E. 2d 630. He must show error, Manufacturing Co. v. Call, supra; White v. Price, 237 N.C. 347, 75 S.E. 2d 244; McCune v. Manufacturing Co., 217 N.C. 351, 8 S.E. 2d 219; Freeman v. Preddy, 237 N.C. 734, 76 S.E. 2d 159, and \u201che must make it appear plainly . . .\u201d Scott v. Swift & Co., 214 N.C. 580, 200 S.E. 21; Quelch v. Futch, 175 N.C. 694, 94 S.E. 713. (For other cases relating to the burden on appeal, see 2 N. C. Digest, Appeal and Error, Key 901.)\nHere the plaintiff was thoroughly familiar with the crossing and the surrounding area. He knew that the tracks to his left curved in a southerly direction. He saw the trees and bushes along the track almost daily. He knew it was a dangerous crossing. It was a clear day and the windows to his automobile were open. He looked to the right and then to the left and there was nothing that he could see coming from the west. He then looked forward and proceeded to cross the track. When he traveled only from seven to nine feet and his right wheel was across the first rail, he saw a train to his left, from 125 to 175 feet from the crossing. Why did be not see tbe train almost directly in front of bim before it bad traveled from 125 to 175 feet beyond all obstructions? Was it for tbe reason be looked once and tben looked no more as bis evidence seems to indicate ?\nHe was asked: \u201cAt tbe time you stopped and looked you did not look any more until you got your wheels on tbe track, did you look to tbe left or west any more?\u201d To tbis be replied: \u201cI looked to tbe left and tben I looked forward because you bad to look where your car was going.\u201d\n\u201cQ. You looked straight ahead?\n\u201cA. Yes.\u201d\nIn explaining why be did not see tbe train until it was within about 125 feet of bim when be could have seen it along tbe north rail for 300 or 325 feet, be testified: \u201cI got tbe right front wheel across tbe south rail of that track which took some little time from where I was stopped back here.\u201d\nTbe record is not such as to permit us to say that tbe court beloAV was in error in concluding that if plaintiff bad looked slightly to bis left as be put bis vehicle in motion, be would have seen tbe approaching train in ample time to avoid tbe collision. Instead, bis evidence supports tbe conclusion that be looked once and tben looked no more. Tbe distance tbe train bad traveled between the time be looked and tbe time be actually saw it indicates strongly that it must have been in full view before be actually reached tbe zone of danger, and, as be was traveling at a speed of only three or four miles per hour, be could have stopped instantly. It would seem, therefore, that tbe line of decisions represented by Parker v. R. R., 232 N.C. 472, 61 S.E. 2d 370, and tbe cases there cited, is controlling.\nAs stated by Stacy, G. J., in Gold v. Kiker, supra:\n\u201cIt may be conceded that tbe record is such as to leave tbe matter in some doubt. Tbis alone would seem to defeat tbe one assignment of error on appeal, as tbe party alleging error has tbe laboring oar and must overcome tbe presumption against bim . . . Verdicts and judgments are not to be disturbed except upon a showing of prejudicial error, i.e., error which amounts to a denial of some substantial right, (cases cited.)\u201d\nAs tbe conclusion plaintiff has failed to overcome tbe presumption against bim prevails, tbe judgment entered must be\nAffirmed.\nWiNboene, J., took no part in tbe consideration or decision of tbis case.", "type": "majority", "author": "Barnhill, J." }, { "text": "DeviN, C. J.,\ndissenting: I am unable to agree with tbe majority opinion in this case. Tbe testimony of tbe plaintiff does not, in my opinion, afford evidence of contributory negligence sufficient to justify a compulsory nonsuit. Tbe well-established rule in tbis jurisdiction is that tbe defendant\u2019s motion for judgment of nonsuit on tbe ground of contributory negligence may be allowed only when \u201ctbe plaintiff\u2019s evidence establishes such negligence so clearly that no other conclusi\u00f3n may be reasonably drawn therefrom.\u201d Edwards v. Vaughn, 238 N.C. 89, and cases cited.\nI think the plaintiff was entitled to have his case submitted to the jury.\nJOHNSON, J., concurs in dissent.", "type": "dissent", "author": "DeviN, C. J.," } ], "attorneys": [ "Paul J. Story and Edwin S. Hartshorn for plaintiff appellant.", "W. T. Joyner and Proctor & Dameron for defendant appellees." ], "corrections": "", "head_matter": "J. HOMER BEAMAN v. SOUTHERN RAILWAY COMPANY and G. W. MORRIS.\n(Filed 21 October, 1953.)\n1. Appeal and Error \u00a7 38\u2014\nTiie presumption is in favor of tbe correctness of the judgment of the lower court, and the burden is upon appellant to show error amounting to a denial of some substantial right.\n2. Railroads \u00a7 4 \u2014 Nonsuit on ground of contributory negligence upheld in this case.\nThe evidence in this ease tended to show that plaintiff was thoroughly familiar with the crossing in question, that he stopped some thirteen feet before reaching the crossing, looked and listened and, seeing and hearing-no train, proceeded forward and did not see defendant\u2019s train until his right front wheel crossed the first track, at which time the train was some 125 to 175 feet away, although from such place a train could have been seen approaching from that direction for a distance of some 300 feet, and that the train struck the left rear of his car before he could clear the crossing. The judgment of nonsuit entered by the trial court upon the issue of contributory negligence is upheld under the presumption in favor of the correctness of the trial court\u2019s decision.\nWinborne, ,T., took no part in the consideration or decision of this case.\nDevin, O. J., dissenting.\nJohnson, J., concurs in dissent.\nAppeal by plaintiff from Clement, J,, July Term, 1953, McDowell. Affirmed.\nCivil action to recover compensation for personal injuries and property damage resulting from auto-train crossing collision.\nThe defendant\u2019s single-track line about two miles east of Marion, N. C., runs in an east-west direction. An unpaved public road crosses the tracks at grade at about a 50-degree angle so that a motorist traveling in a northerly direction would approach the crossing at an angle of approximately 140 degrees. He would, for practical purposes, be in a position to look directly down the track in a westerly direction to a point where his vision was obstructed or would extend.\nPlaintiff lives on the south side of and 250 to 300 feet from the railroad. His driveway enters the public road about 25 feet south of the railroad. His place of business is on the north side so that for many years he has traveled back and forth over this grade crossing, and he was, at the time complained of, familiar with all the surrounding conditions.\nThe tracks west of the crossing are straight for a distance of 158 feet. They then, for some distance, curve gradually to the south so that a person at the crossing can see the switch stand, 220 or 225 feet away. Looking along the north rail, he can see 100 feet farther, that is, for a distance of 300 or 325 feet. On the defendant\u2019s right of way, on the south side, there are large and small trees, bushes, and vegetation. A largo oak with overhanging branches, one of which is within seven feet of the south rail, stands within 68 feet of the crossing.\nOn the morning of 13 September 1950, plaintiff approached the crossing from the south. He stopped with his left front wheel approximately thirteen feet from the south rail and the right wheel within six to eight feet thereof. He was in the driver\u2019s seat on the left, about twenty-one or twenty-two feet from the south rail. He looked and listened. He saw no train and heard no whistle or other signal. He then started forward. When his right wheel got across the first track, but before the left wheel had reached it, he saw a train coming from the west, 125 to 175 feet away. The speed of the train was estimated to be 20 to 50 m.p.h. About the time plaintiff saw the train, \u201cit blew two or three jerky blows on their whistle or horn.\u201d \u201cWhen I saw that train coming, I accelerated my car but I was not successful in clearing the crossing.\u201d The Diesel engine struck the left rear side of the automobile and plaintiff suffered certain personal injuries. His automobile was practically demolished.\nThere is a sidetrack west of the crossing and on the south side of the main line. The switch stand is on the south side about 220 feet from the crossing. One near the crossing can see down the track to this switch stand or a short distance beyond.\nWhile plaintiff makes certain allegations respecting the roughness of the crossing, there is no evidence it stalled his ear or impeded him when he undertook to drive across ahead of the train.\nAt the conclusion of plaintiff\u2019s evidence in chief, the court, on motion of defendant, entered a judgment of involuntary nonsuit. Plaintiff excepted and appealed.\nPaul J. Story and Edwin S. Hartshorn for plaintiff appellant.\nW. T. Joyner and Proctor & Dameron for defendant appellees." }, "file_name": "0418-01", "first_page_order": 468, "last_page_order": 472 }