Yesterday, a train hit a car on Thermal Road, near Monroe Road. No one is believed to be injured in the accident, and, in fact, no one was in the car when the police arrived to investigate the accident. The police believe the driver of the car “took off.” The collision caused the car to be pushed 100 yards down the train track, and a backhoe was needed to remove the car from the tracks.
This accident serves to remind us of the duties involving cars and trains. First, railroads have duties and can be found negligent if they fail to meet those duties. A train must give a “reasonable and timely warning of the approach” where it crosses a street.
Ordinarily, at a grade crossing where no unusually dangerous or hazardous conditions exist, timely signals by sounding the bell or blowing the whistle are deemed adequate. But where there are circumstances of more than ordinary danger and where the surroundings are such as to render the crossing peculiarly and unusually hazardous to those who have a right to traverse it, a question of fact is raised for the determination of the jury whether under the circumstances the operator of the railroad has exercised due care in providing reasonable protection for those who use the crossing, and whether the degree of care which the operator of the railroad is required to exercise to avoid injury at grade crossings imposes the duty to provide safety devices at the crossing.
Caldwell v. Southern Ry. Co. (NC SCt 1940)
A railroad is also under a duty to “maintain its crossings over a public highway in a reasonably safe condition so as to permit safe and convenient passage over them.”
A railroad company is not an insurer of the safety of travelers, and it is not required to maintain a foolproof crossing or a crossing where no injury is possible. In general, a railroad company is only liable for a defect or condition on its right of way over a public crossing which is caused by its negligence and which renders crossing unnecessarily unsafe and dangerous to persons having occasion to use the crossing, while in the exercise of reasonable care; and such negligence is a proximate cause of the injuries complained of.
Price v. Seaboard Air Line R. Co. (NC SCt 1968)
However, railroads are not the only ones with duties. Motorists also have duties with respect to railroad crossings under North Carolina statute. G.S. 20-142.1 provides that
(a) Whenever any person driving a vehicle approaches a railroad grade crossing under any of the circumstances stated in this section, the driver of the vehicle shall stop within 50 feet, but not less than 15 feet from the nearest rail of the railroad and shall not proceed until he can do so safely. These requirements apply when:
(1) A clearly visible electrical or mechanical signal device gives warning of the immediate approach of a railroad train;
(2) A crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a railroad train;
(3) A railroad train approaching within approximately 1500 feet of the highway crossing emits a signal audible from that distance, and the railroad train is an immediate hazard because of its speed or nearness to the crossing; or
(4) An approaching railroad train is plainly visible and is in hazardous proximity to the crossing.
(b) No person shall drive any vehicle through, around, or under any crossing gate or barrier at a railroad crossing while the gate or barrier is closed or is being opened or closed, nor shall any pedestrian pass through, around, over, or under any crossing gate or barrier at a railroad crossing while the gate or barrier is closed or is being opened or closed.
(c) When stopping as required at a railroad crossing, the driver shall keep as far to the right of the highway as possible and shall not form two lanes of traffic unless the roadway is marked for four or more lanes of traffic.
(d) Any person who violates any provisions of this section shall be guilty of an infraction and punished in accordance with G.S. 20-176. Violation of this section shall not constitute negligence per se.
(e) An employer who knowingly allows, requires, permits, or otherwise authorizes a driver of a commercial motor vehicle to violate this section shall be guilty of an infraction. Such employer will also be subject to a civil penalty under G.S. 20-37.21.
Because the driver of the car in yesterday’s accident had time to escape the car, it seems unlikely that the train was visible or the gates were lowered at the time the car approached the tracks. However, although we have no specific facts, the driver’s abandonment of the car might cause us to suspect that he was negligent in some way. If the driver filed a claim seeking damages caused by the train to his car, the railroad might raise the driver’s contributory negligence as a defense.
A plaintiff’s contributory negligence usually acts as a total bar to recovery, but a contributorily negligent plaintiff can sometimes use the last clear chance doctrine to still recover damages. Unfortunately for a driver in a train accident, in cases in which a car is stalled on railroad tracks, courts have held that “[t]he engineer ha[s] a right to assume up to the very moment of the collision that the plaintiff [can] and [will] extricate himself from danger.” (Temple v. Hawkins (N.C. S.Ct. 1941)) In Temple, the train was negligent in failing to give a signal to warn a motorist whose truck had stalled on the tracks. The motorist argued that, notwithstanding his contributory negligence, the he should be able to recover damages under the last clear chance doctrine. However, the Court first reasoned that even if the train had given a signal, this would not have helped the motorist because he had seen the train approaching with enough time to get out of the truck before the collision. The Court then stated that
There is no evidence that the engineer knew, or by the exercise of due care could have known that the plaintiff was helpless upon the track of the defendants, if indeed plaintiff was so helpless. Plaintiff may have been courageous and loyal to the extent of being foolhardy in his effort to save his employer’s truck, but the evidence does not tend to show that he was either helpless or oblivious of his danger. Like Casabianca of old he stayed by his ship, alas too long! This may, perhaps, have been praiseworthy, but the consequences thereof are not the liability of the defendants.