#### E. G. WESTON v. SOUTHERN RAILWAY COMPANY.

(Filed 14 September, 1927.)

1. Negligence — Automobiles—Headlights—Highways — Rule of Prudent Man.

The motorist upon a public highway on a dark, misty and foggy night, is required to regulate the speed of his car with a view to his own safety according to the distance the light from his headlights is thrown in front of him upon the highway, and to observe the rule of the ordinary prudent man.

*2112. Same — Speed Limits — Statutes—Evidence—Nonsuit.

Tbe failure of a motorist to stop his automobile before crossing a railroad at a grade crossing on a public highway, as directed by 3 C. S., 2621(b) “at a distance not exceeding fifty feet from the nearest rail,” does not constitute contributory negligence *per se*in his action against the railroad company to recover damages to his car caused by a collision with a train standing upon the track, and where the evidence tends only to show that the proximate cause of the plaintiff’s injury was his own negligence in exceeding the speed he should have used under the circumstances, a judgment as of nonsuit thereon should be entered on defendant’s motion therefor properly entered.

3. Negligence — Automobiles— Evidence — Nonsuit — Highways — Headlights.

Where the evidence tends only to show that the plaintiff was exceeding the speed required for his own safety under the rule of the prudent man in running his automobile on a dark and foggy night over a grade crossing with a railroad track, without • stopping, and his car was injured by coming in contact with defendant’s train standing thereon awaiting dispatch orders to move forward: *Held,*insufficient to take the case to the jury in plaintiff’s action against the railroad company for damages thereby sustained in a collision with the defendant’s train, and a motion for judgment as of nonsuit thereon should be granted upon the issue of plaintiff’s contributory negligence.

Civil actioN, before Daniels, *J.,*at February Term, 1927, of Beaufort.

Beversed.

Tbe plaintiff alleged: “Tbat on tbe morning of 1 October, 1926, about 3 o’clock a.m., tbe plaintiff was driving bis Dodge sedan from Charlotte to Salisbury on said public highway at a moderate rate of speed; tbat tbe night was dark and cloudy and a misting rain was falling; tbat tbe plaintiff was not familiar with tbe locality in which be was and did not know tbat said railroad track crossed tbe highway at tbat point; tbat at said time tbe defendant . . . negligently stopped

and permitted to remain across tbe highway and upon tbe track of defendant a long freight train, which at said time was stationary, and which completely blocked tbe highway; tbat tbe defendant negligently failed to give any sign whatsoever of tbe presence of said freight train across tbe highway by means of lights or any other signal or device; . . . that the plaintiff could not, in the use of ordinary care, discover the presence of said train until he was too close to the same to avoid a collision, and in attempting to do so, his car was turned to the side of the road where it was completely turned over and utterly demolished.”

The defendant entered a general denial to the allegations of negligence contained in the complaint and pleaded contributory negligence of the plaintiff as the proximate cause of his injury and as a bar to *212recovery, alleging in substance that the plaintiff failed to stop, look or listen, and in disregard of the “N. C. law stop sign,” drove ahead without sufficient headlight, failing to keep the proper lookout and at too great a speed.

Issues of negligence, contributory negligence and damages were submitted to the jury, and the jury by its verdict found that the defendant was guilty of negligence and that plaintiff was not guilty of contributory negligence, and assessed damages in the sum of $1,100.

From the judgment upon the verdict the defendant appealed, assigning error.

*Stewart & Bryan and E. G. Garter for •plaintiff.*

*Earry McMullan for defendant.*

BeogdeN, J.

What duty does the law impose upon a motorist driving at night with reference to railroad grade crossings when the vision of the driver is obscured by rain, fog or mist, and the pavement is wet and slippery?

In *Coleman v. R. R.,*153 N. C., p. 322, *Brown, J.,*writes: *“A*railroad crossing is itself a notice of danger, and all persons approaching it are bound to exercise care and prudence, and when the conditions are such that a diligent use of the senses would have avoided the injury, a failure to use them constitutes contributory negligence and will be so declared by the Court.”

Again in *Holton v. R. R.,*188 N. C., p. 277, *Hoke, C. J.,*declares the law thus: “It is the recognized duty of a person on or approaching a railroad crossing to ‘look and listen in both directions for approaching trains if not prevented from doing so by the fault of the railroad company or other circumstances clearing him from blame/ and where, as to persons other than employees of the company, there has been a breach of this duty clearly concurring as a proximate cause of the injury, recovery therefor is barred.”

• 3 C. S., 2621(b), requires every person operating a motor vehicle, approaching a railroad grade crossing (except as otherwise provided therein), to stop “at a distance not exceeding fifty feet from the nearest rail.” However, a failure to stop does not constitute contributory negligence *per se,*but the facts relating to such failure to stop may be considered with the other facts in the case in determining whether the plaintiff was guilty of contributory negligence.

In the present case the plaintifE testified that he did not see the railroad crossing at all by reason of the location of the track, and particularly by reason of the fact that the rain and mist obscured his vision, *213rendering it impossible for bim to see tbe crossing more tban thirty-five feet ahead. Hence, in tbe final analysis, tbe case presents tbe question of tbe duty of an automobile driver, operating bis car in tbe nigbt time, witb bis vision obscured by rain or other conditions upon tbe highway.

Tbe identical question has not been determined in this State. In *Hughes v. Luther,*189 N. C., 841, this Court declared tbe law to be that if a motorist in tbe nigbt time could see a truck parked by tbe roadside in violation of-C. S., 2615, a distance of seventy-five yards, and while operating his car at a speed of 27 or 28 miles an hour, struck tbe truck, bis own negligence was tbe proximate cause of bis injury as a matter of law, and therefore be was not entitled to recover damages from tbe owner of tbe truck, even though tbe truck was parked unlawfully on tbe highway. In short, tbe driver could see, but would not slacken bis speed or stop or take any precaution for bis own safety, but plunged ahead apparently regardless of consequences'.

Tbe present case presents to a certain degree an opposite aspect of tbe law, as tbe evidence discloses that tbe plaintiff could not see more tban 35 feet because of rain and mist which obscured bis vision, and yet be swept on at a speed of 30 or 35 miles an hour.

Tbe general rule under such circumstances is thus stated in Huddy on Automobiles, 7 ed., 1924, see. 396: “It was negligence for tbe driver of tbe automobile to propel it in a dark place in which be bad to rely on tbe lights of bis machine at a rate faster tban enabled bim to stop or avoid any obstruction within tbe radius of bis light, or within tbe distance to which bis lights would disclose tbe existence of obstructions. . . . . If tbe lights on tbe automobile would disclose obstructions only ten yards away it was. tbe duty of tbe driver to so regulate tbe speed of bis machine that be could at all times avoid obstructions within that distance. If tbe lights on tbe machine would disclose objects further away tban ten yards, and tbe driver failed to see tbe object in time, then be would be conclusively presumed to be guilty of negligence, because it was bis duty to see what could have been seen.”' Tbe rule thus expressed finds accurate and ample support in tbe authorities cited. For instance, tbe Michigan Court in 1922, in *Spencer v. Taylor,*188 N. W., 461, said: “We think tbe court was right in bolding plaintiff guilty of contributory negligence as a matter of law. It is well settled that it is negligence as a matter of law to drive an automobile along a public highway in tbe dark at such speed that it cannot be stopped within tbe distance that objects can be seen ahead of it.”

Tbe Ohio Court in 1926, in ease of *Toledo Terminal R. R. Co. v. Hughes,*154 N. E., 916, said: “While it is true that ordinarily tbe *214degree of care an ordinarily prudent man would use under tbe circumstances disclosed, is a question for a jury, however, wé think the conceded facts — the lights that did not penetrate the fog, the traveling at a rate of speed such that when he discovered the train upon the track, the swinging of his wheels to the left caused the rear end of his car to swing around and catch between two freight cars, so when the train started it dragged him off the road into the ditch — all show that the plaintiff below was chargeable with contributory negligence, that he did not exercise that degree of care which one of ordinary prudence should have used, and therefore the trial court was right in directing a verdict.”

The Wisconsin Court in *Lauson v. Fon Du Lac,*123 N. W., 629, 25 L. R. A. (N. S.), 40, held: “It seems to us, and we decide, that the driver of an automobile, circumstanced as was the driver of the car in which the plaintiff was riding, and operating it under such conditions as he operated his machine on the night of the accident, is not exercising ordinary care if he is driving the car at such rate of speed that he cannot bring it to a standstill within the distance that he can plainly see objects or obstructions ahead of him. If his lights be such that he can see objects for only a distance of ten feet, then he should so regulate his speed as to be able to stop his machine within that distance.”

The Supreme Court of Utah in the case of *Nikoleropoulos v. Ramsey,*214 Pac., 304, considered this question in a decision rendered March, 1923. The defendant was operating his automobile on a public highway. “The night was stormy, with some rain, which tended to obscure •his vision! The plaintiff was walking in the highway. The defendant testified: ‘I hit him because I didn’t see him in time to stop. In other words, I could not stop within that distance.’ He further testified that at the time he could not see objects further ahead than six feet and did not see the plaintiff until within six feet of him. The defendant was traveling about twelve miles an hour. At the conclusion of the evidence the plaintiff’s attorney requested the following instruction to the jury: ‘You are instructed that it is negligence as a matter of law for a person ‘'to drive an automobile upon a traveled public highway used by vehicles and pedestrians, at such a rate of speed that said automobile cannot be stopped within the distance which the operator of said car is able to see objects upon the highway in front of him.’ The trial court refused the request and.instructed the jury as follows: ‘A driver of an automobile at night is required to use such reasonable and ordinary care to have his machine under such control as to not overtake and run down people within the range of his lights, as would be used by a man of average and reasonable care and prudence in his situation.’ The opinion in the case declares: ‘The request of plaintiff was not only a correct statement *215of law, but under tbe authorities cited, it furnished a standard of reasonable and ordinary care without the qualifying phrases injected by the trial court.’ ”

The principle has been recognized and applied in the states of Kansas, Tennessee, Michigan, Minnesota, Delaware, West Virginia, New Jersey, Pennsylvania and Vermont. *Fisher v. O'Brien,*99 Kan., 621, L. R. A. (1917F), 610; *West Cons. Co. v. White*(Tenn.), 172 S. W., 301; *Heiden v. Minneapolis Street Railway Co.,*191 N. W., 254; *Philadelphia & Reading R. R. Co. v. Dillon,*114 At., 62; *Ewing v. Chapman*(W. Va.), 114 S. E., 158; *Savage v. Pub. Ser. R. R. Co.*(N. J.), 99 At., 383; *Serfas v. Lehigh & N. E. R. Co.,*113 At., 370; *Gallagher v. Montpelier & Wells River R. R.,*137 At., 207; *Fannin v. R. R.,*200 N. W., 651.

The standard of duty announced and applied in the foregoing authorities is broad, severe and unbending, but it appears to be a just rule, particularly in view of the fact of the appalling destruction of life and limb by motor driven vehicles upon the highways of the State.

However, it is not necessary to apply the rule strictly in order to defeat recovery in the present case. Plaintiff, narrating the occurrence, testified as follows: “I was not familiar with the road at all. The road approaching the railroad was not straight. I would say I was 35 feet from the train when I discovered it. . . . It was misting rain, the pavement was wet. ... I got within 35 feet of the railroad when I discovered an object in front of me. When I first saw it I could not tell what the object was. In the instant I could realize what it was I put on my brakes first. When after putting on my brakes I realized on account of the pavement the brakes would not take; the road was slippery; ordinarily the car would be decreasing by the time, but instead of slowing it got faster as it skidded. I did what I thought was the best thing a reasonable man could do, and I turned my car off the highway to prevent running into the object in front, and I ran off the embankment 25 feet from the track. . . . The train was standing, completely blocking the public road. ... I did not at that time see an N. C. stop sign. I saw it afterwards in the day time. In coming around the bend, my lights reflected on the left side of the road and the sign was on the right side. I could not see it. . . . Had good lights on the car. Dodge lights are good lights. They will throw the light ahead half of a city block, but they will not show half a block on wet asphalt pavement. . . . My excuse for running my car over the culvert was *because I could not see the train until within SB feet of it. I was within SB feet of it*— that *ivas the best I could see at the time. It was not possible at that distance for me to have stopped right ai the**216*train.*... I was not traveling faster than 35 miles. I said I was going 30 or 35 miles an hour. I think I was going 30 miles. ... I would say now I was going 30 or 35 miles, possibly 30.”

There was testimony that the train had stopped at the crossing in order to get permission from the dispatcher to cross the main line. There was further evidence tending to show that the box cars, blocking the crossing, were 12 to 15 feet high. Capers Young, who was in the car with the plaintiff at the time of the accident, testified that the night was damp, foggy and misty, and further stated: “I did not see anything until I got within 35 feet of the box car. If it had been a mountain, I wouldn’t have seen it. You couldn’t see 35 feet ahead.”

An analysis of plaintiff’s testimony points unerringly to the conclusion that the proximate cause of plaintiff’s injury was his inability to see more than 35 feet ahead and his inability to stop his car within the distance of his vision by reason of the rapid speed of the automobile. As the motorists say, “He was out-running his headlights” upon a strange road upon which there was no traffic or glaring lights, and in disregard of the duty imposed upon him to look and listen or to observe the “N. C. stop sign,” which stood upon the side of the road, silently admonishing him of possible danger or death. He saw an object in front. He says: “When I first saw it I could not tell what the object was.” He made no effort to reduce his speed until it was too late. He took a chance and lost.

So far as we can discover, there is no evidence that the plaintiff took any precaution whatever for his own safety, and we therefore hold that the motion for nonsuit should have been sustained, and it is so ordered.

Reversed.