75 S.E. 722 | N.C. | 1912
The facts are sufficiently stated in the opinion of the Court by MR. JUSTICE WALKER. It is not necessary to make an extended statement of the facts in this case. The plaintiff's intestate, Frank Brown, was killed at Suffolk, Va., while, as alleged, he was boarding the defendant's passenger train at that place, bound for Margarettsville in this State. The plaintiff's testimony tended to show that the intestate purchased a ticket for his passage from Suffolk to his destination, and was in the act of getting upon the passenger coach just after the conductor had given the call, "All aboard!" when the train was started — "at once after the signal was given," and the intestate, who was unable to gain a foothold because of the speed of the train and the crowded condition of the steps and platform of the car, was knocked under the cars by a truck of the Southern Express Company, which had been left on the platform at the station, within a few feet of the passing train, and killed.
One witness testified that the train started with a jerk and (320) "with full force," while passengers were trying to alight from the train and the intestate was attempting to get on the steps, and that plaintiff could have been seen by the engineer and the porter, who called for passengers to get aboard.
On the contrary, there was evidence tending to show that the train started at its usual speed, and that intestate was leaving the car and jumped on the truck and was killed. There was also evidence that he was warned not to leave the car by the porter, who told him that he would have the train stopped so that he could get off safely.
It may be said generally that some of the evidence tended to show negligence on the part of the defendant, which approximately caused the intestate's death, while there was other evidence which tended to *261 prove that the intestate's death was caused entirely by his own fault in jumping from a rapidly moving train. The court submitted the case to the jury in a charge which fully explained every phase of the evidence and clearly set forth the law applicable to the facts as they might find them to be.
The charge of the court was in accordance with the principles laid down in Roberts v. R. R.,
In Gregg v. Wilmington,
Churchill v. Holt,
When the same case was before the Court on a former appeal, it was said: "The rule that one of two joint tort feasors cannot maintain an action against the other for indemnity or contribution does not apply to a case where one does the act or creates the nuisance, and the other does not join therein, but is thereby exposed to liability. In such case the parties are not in pari delicto, as to each other, though as to third persons either may be held liable." But that is not our case. Here the express company left the truck near the track of the railroad company, and if this was a negligent act, it would not have harmed the intestate if the defendant had not also been negligent. The two acts concurred in producing the injury, and, upon the assumption that the express company was negligent, it and the railroad company were joint tort feasors, as to the plaintiff and as between themselves, and there is no right of indemnity or contribution. It may also be said that the defendant's wrong was the active and dominant cause of the injury, without which it would not have occurred, and it, therefore, has no ground whatever upon which to base a claim for compensation against its codelinquent. Comrs. v. Indemnity Co.,
No error. *263
(323)