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Thomas Brothers Oil and Gas Inc. v. Southern Railway Co.

Filed: November 3, 1981.

THOMAS BROTHERS OIL AND GAS, INC.
v.
SOUTHERN RAILWAY COMPANY AND B. G. CHAMBERS



Appeal by plaintiff from Walker, Judge. Judgment entered 13 October 1980 in Superior Court, Guilford County. Heard in the Court of Appeals 24 September 1981.

Hill, Judge. Judges Hedrick and Whichard concur.

Hill

We find it unnecessary to address all the issues raised by the parties in this action. We therefore direct our attention to the single issue of whether the trial judge erred in granting defendants' motion for a directed verdict on the grounds stated.

The question raised by a directed verdict motion is whether the evidence is sufficient to go to the jury. Rappaport v. Days Inn of America, inc., 296 N.C. 382, 250 S.E.2d 245 (1979); Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). In reviewing such a motion granted at the close of all the evidence, we "[n]ot only consider evidence offered by the plaintiff but that offered by the defendant which is favorable to the plaintiff or not in conflict therewith, or when it may be used to clarify or explain the plaintiff's evidence." Tew v. Runnels, 249 N.C. 1, 6, 105 S.E.2d 108, 111 (1958). Accord, Blanton v. Frye, 272 N.C. 231, 158 S.E.2d 57 (1967); Jenkins v. Starrett Corp., 13 N.C. App. 437, 186 S.E.2d 198 (1972). A directed verdict motion by defendant may be granted only if the evidence is insufficient as a matter of law to justify a verdict for plaintiff. Husketh v. Convenient Systems, Inc., 295 N.C. 459, 245 S.E.2d 507 (1978); Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974).

Applying the above standards to the evidence, we conclude that the trial court erred in granting defendants' motion for directed verdict. We first address the court's ruling that plaintiff failed to show negligence on the part of defendants.

Plaintiff's evidence tended to show that its truck driver, Charlie Albert Smith, Jr., approached the intersection of Gallimore Dairy Road and Highway 421 at approximately 3:00 p.m. on 14 July 1977. He "pulled up to the railroad crossing and observed both ways up and down the tracks." The railroad tracks toward Greensboro were straight for about one-half mile and level. Smith could not cross the tracks because of traffic on Highway 421, which ran parallel to the tracks. Smith testified

that "[t]he train wasn't in view before I started to go across the tracks and I didn't know it was there until just before I was hit. I did not see the approaching train at all."

Defendants' evidence tended to show that B. G. Chambers, the engineer, believed that the train "came around the curve doing 18 to 20 MPH." Chambers testified that "Train Order 739" had been issued on the day of the collision to reduce the train's speed to 25 m.p.h. However, "[t]he accident occurred within the yard limits of the Guilford College yard." The speed limit therein was 20 m.p.h. Chambers stated that he had set the dynamic brake, a traction motor which slows the train down or maintains a constant speed, to maintain a constant speed of 20 m.p.h. It was his opinion that "the train was running between 20 and 21 MPH prior to the time the collision occurred."

Chambers further testified that the train was 700 or 800 feet away from the crossing when he saw the tractor-trailer move slowly across the tracks. When the train was "possibly 300 or 400 feet from him [plaintiff's tractor-trailer]", he stated, the tractor-trailer stopped. Chambers applied the train's emergency brake anywhere from about 200 to 400 feet from the Gallimore Dairy Road crossing. The front engine eventually stopped about 165 feet west of the crossing after the collision.

Kelly Foster Spainhour, the head end brakeman on defendant railway's train, testified that the train did not exceed 18 m.p.h. as it approached the Gallimore Dairy Road intersection. Regarding the approach of the train to the intersection, Spainhour further testified as follows:

I saw the tractor and trailer move as I came around the curve. When we came across the Fina crossing the tractor trailer started moving and we were about half way between the Fina crossing and the Gallimore Dairy crossing when the tractor got to 421 and stopped dead. Mr. Chambers put the train in emergency and hollered at me to get off, that he didn't believe the tractor was going to get off the track. I might have said, "I don't believe he is going to move."

The Fina crossing is approximately 1000 feet east of the Gallimore Dairy Road crossing. Spainhour also testified that Chambers was blowing the train's ...


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