Appeals by plaintiffs and by defendant, Reuben Anderson Galyeans, from Mills, Judge. Plaintiffs appeal from judgment entered 23 May 1978 and defendant Galyeans appeals from said judgment and from order entered 27 June 1978 in Superior Court, Davidson County. Heard in the Court of Appeals 20 August 1979.
Parker, Judge. Chief Judge Morris concurs. Judge Martin (Harry C.) dissents.
Evidence presented by the parties concerning the speed of the train and whether the whistle was timely blown was sharply conflicting. Plaintiffs' evidence tended to show that the train approached the crossing at a speed of 25 to 30 miles per hour and that the whistle blew when the train was a quarter mile from the crossing and kept blowing with only short pauses until the train reached the crossing. Defendants' evidence tended to show that the train was going 40 to 50 miles per hour and that the whistle did not blow until approximately three seconds before the collision, when the tractor-trailer was already on the railroad tracks. By its answers to issues 8 and 10, the jury has resolved these conflicts against the plaintiffs, and on this appeal they have raised no question concerning the jury's determination that Mansfield, the engineer, was negligent in the manner in which he operated the train, nor have they questioned Mansfield's status as an agent and employee of the Railway Company. Thus, for purposes of this appeal it may be taken as established that Mansfield was negligent in his operation of the train and that the Railway Company is derivatively liable for his negligence.
Plaintiff-appellants assign error to the court's denial of their motion for a directed verdict on the issue of defendant Anderson's contributory negligence. In considering the question thus presented, we view the case in the context of the defendants' counterclaims against the plaintiffs, the defendants with respect to their counterclaims being in the position normally occupied by a plaintiff and plaintiff-appellants being in the position normally occupied by a defendant.
In its pleadings, Dimension Milling Company, Inc. acknowledged that Anderson was its agent, and the jury by its
answer to Issue No. 6 has found that Anderson was also the agent of the defendant Galyeans. Thus, both of these counterclaiming defendants would be derivatively responsible for Anderson's contributory negligence should it be determined that he was guilty of contributory negligence.
The court's ruling denying appellants' motion for a directed verdict on the ground of Anderson's contributory negligence must be sustained unless defendants' evidence, taken as true and interpreted in the light most favorable to them, so clearly shows his negligence to have been a proximate cause of the collision and of the counterclaiming defendants' resulting damages that it will support no other conclusion as a matter of law. Neal v. Booth, 287 N.C. 237, 214 S.E.2d 36 (1975); Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). Defendants' evidence, taken as true and interpreted in the light most favorable to them, supplemented by such portions of plaintiffs' evidence as are favorable to the defendants, shows the following:
On the morning of 19 March 1976, Anderson, accompanied by Galyeans in a westerly direction on Highway 47 toward the grade crossing at which the railroad tracks crossed the highway at a right angle. In the vicinity of the crossing, Highway 47 was a paved two-lane road approximately 20 feet wide. The pavement was rough asphalt as the road crossed the railroad tracks. On either side of the tracks there was a regular railroad crossing sign, but there were no electrical or mechanical signs or devices to indicate the approach of a train to persons traveling on the highway.
The engine of the tractor which Anderson was driving was located beneath the driver's seat, and the driver sat right up at the front of the cab. The trailer was 40 feet long and was loaded with lumber. The lumber weighed approximately 40,000 pounds, and the total weight of the tractor-trailer and the lumber was 75,000 to 79,000 pounds. The weather was clear. It was not cold, and the window on the driver's side was half-way down.
Between 75 and 100 yards east of the tracks, the road passed over the crest of a hill. As Anderson drove over the crest of this hill, the railroad tracks came into his view. At that time he had already started slowing down and was going 25 to 30 miles per
hour when he topped the hill. After he crested the hill and started down hill toward the crossing, he continued to slow down by applying pressure to the brakes and shifting gears down. When he was 50 feet from the tracks, he was traveling at 8 to 10 miles per hour and had a view of the tracks about 50 feet to the north, but bushes and trees growing on a little bank 7 or 8 feet from the railroad tracks and approximately 50 or 60 feet from the road prevented him from seeing further in that direction. His window was rolled down, but he heard no whistle or train noise. As he approached nearer to the tracks, he leaned forward in the cab and started to look both ways for a train. He first saw the train when he was 3 to 4 feet from the tracks. At that time the train was 50 to 60 feet up the tracks to his right, approaching the crossing from the north. His speed at that moment was 3 to 4 miles per hour. He immediately braked in an attempt to stop. When he realized he could not stop completely without the train hitting the cab in which he and his passenger were riding, he accelerated in an attempt to clear the tracks. The tractor and about half of the trailer did clear the tracks, but the train engine struck the trailer near its rear wheels, the impact knocking the tractor-trailer off the tracks and south of the highway, a distance of about 49 feet. Anderson heard the whistle blow "approximately three seconds or so before it hit, it blew, then it hit." The train continued southward along the tracks until it came to a stop with the engine approximately 730 feet south of the highway crossing.
Anderson testified that he was familiar with the road on which he was traveling, having traveled on it "quite a few times" before, and that he was familiar with the crossing, having crossed it "many times." He testified that as he approached the crossing he had a conversation with his passenger, Gothke, about the crossing, and that when they were "topping the hill and coming over the hill I was telling him how bad the track was." Anderson further testified:
"As I approached that track and was within five feet of the track I had not seen any train on the track at that time. I had not heard any noise.
"I didn't see the train and had no knowledge the train was coming until I was about 3 to 4 feet from the track. At
that time my first reaction was to naturally hit the brakes. I was going a very slow speed at that time. As soon as I hit the brakes -- I kept moving forward the whole time -- I realized that if I stopped I was going to be hit in the cab area so I decided to get across so at least I would not get hit where Mr. Gothke and I were seated.
"Yes, I knew, of course, if I needed to stop my truck it would be necessary to go even slower than the speed I was in if I had to put brakes on. As to whether it occurred to me as I came down the hill that maybe a train was using that track that morning, yes, that's what I was looking for. As to how many feet it takes to stop my truck, it depends on how fast I am going -- when I am going 3 to 4 mph, I don't know. As to whether I don't have an opinion, 5 feet, something like that. As to whether at the speed I was traveling I could have stopped in 5 or 6 feet, something like that.
"When I first saw the train it was about 50 to 60 feet from the crossing and I was right up on the track. I couldn't see more than 50 to 60 feet in the direction the train was coming. No, there was no point when I was coming down the road, any point other than when I was ...