Hamilton v. . R. R.Hamilton v. . R. R.
- Reporters:
- , ,
- Before:
- Clarkson
In speaking of the Southern Railway Company, it will be referred to as the “Southern” and the Seaboard Air Line Railway Company, as the “Seaboard.”
This is an action in the final analysis for actionable negligence, brought by plaintiff against the defendants as joint tort-feasors. The plaintiff contends that there was a track at Franklin, Va., in the shape of a semi-circle, connecting the two defendants’ railroads that has
On 10 December, 1927, and for about six months prior thereto, the plaintiff was in the employ of the Seaboard on this “exchange track” as car inspector and repairman, and also working for the Southern as repairman. The Seaboard paid him, but inferentially the Southern contributed to his pay. Freight that was to be transferred to the Southern would go over the connecting tracks, also freight to be transferred to the Seaboard. Between the two was a State highway grade crossing. Between the Seaboard tracks and the highway was the car inspector‘s shanty used by plaintiff.
Plaintiff testified, in part: “They used this connection track for other purposes, they put cars in there for the Seaboard to pick up, and they would put cars in there for the Southern to pick up the next day, and for moving cars from the Southern to the Seaboard and back. It was used for repairing brakes. I went to work at Franklin, Va., in July, 1927, and was constantly employed there from that time until I was
Upon demand made upon the defendants by counsel for plaintiff the defendant, Southern, furnished to plaintiff the papers which were admitted by the defendant, Southern, to be a true copy of the contract between the Southern and the Seaboard relative to the interchange track and in force and effect on 10 December, 1927. The plaintiff offered this contract in evidence.
Plaintiff offered in evidence a portion, of section 5 of the answer of defendant, Seaboard, as follows: “It is admitted that the interchange or connection track at Franklin, Va., is used in the transfer of freight cars between this defendant and the Southern under a private contract entered into by this defendant and said company.” (The Southern and Seaboard both objected to the introduction of the contract, overruled, the defendants except.)
Plaintiff offered in evidence a portion of the answer of defendant, Seaboard, to section of the amended complaint, as follows: “It is admitted that on 10 December, 1927, the plaintiff was engaged in making repairs to Southern box car No. 35869 on the track connecting this defendant‘s line of railroad with that of the Southern.”
The defendant, Seaboard, admitted that it was engaged and that plaintiff was employed in interstate commerce at the time of the injury.
R.H. Peters, a witness for defendant, Southern, testified in part: “I am an employee of the Southern. I am operator-clerk at Franklin, Va., and have been there since 1918, and I have been with the railroad for twelve years. On and before 10 December, 1927, it was my duty relative to noting the arrival of Southern trains to put it down on regular forms. I made a record of the arrival of trains of which Mr. Yarborough was the conductor known as the switcher. I have here the record which I made myself that records the arrival of trains at Franklin. The switcher arrived at Franklin at 9:35 on 10 December, 1927. The general arrival of the time of that train varied. It depended upon the volume of business. . . . During the latter part of November the hours of arrival were later, depending upon the amount of business. In connection with the removal of Southern cars from the interchange track it was my duty to receive the numbers from the Seaboard and they notified me that they were on there and I had to give the conductor a list to take them off. I do not know whether it was the custom of the Seaboard to notify me when a car was placed on the track. They would phone us that the cars were ready to be pulled. My records show that on 10 December, 1927, Conductor McGee (of the Seaboard) phoned that Southern empty car number 36859 was ready for movement, and that is all the information that I had at the time concerning the car. That was the regular way of notifying me, either by that or the agent. After I got that information I put it down on the record book and put it on the switch list to come out. I gave the directions to Conductor Yarborough as soon as he got in the office.”
J. T. Soloman, a witness for Southern, testified “Am employee of Seaboard. I am clerk for supply department.” On cross-examination: “The records do not show that any blue flag was sent to Mr. Hamilton.”
The issues submitted to the jury and their answers thereto, were as follows:
“1. Was the plaintiff injured by the negligence of the defendant, Southern, as alleged in the complaint? Answer: Yes.
2. If so, did the plaintiff by his own negligence contribute to his injury as alleged in defendant Southern‘s answer? Answer: No.
3. Was the plaintiff engaged in interstate commerce at the time of his injury? Answer: Yes.
4. Was the plaintiff injured by the negligence of the defendant Seaboard, as alleged in the complaint? Answer: Yes.
5. If so, did the plaintiff by his own negligence contribute to his own injury as alleged in the answer of defendant Seaboard? Answer: No.
6. Did the plaintiff voluntarily assume the risks of his injury as alleged in the answer of the defendant Seaboard? Answer: No.
7. What amount of damages, if any, has plaintiff sustained by reason of his injury? Answer: $33,875.00.
8. If the plaintiff by his own negligence contributed to his injury, by what amount are the damages to be reduced? Answer: ........”
Upon the verdict, the court below rendered judgment. The defendants made numerous exceptions and assignments of error and appealed to the Supreme Court.
The other material facts will be considered in the opinion. At the conclusion of plaintiff‘s evidence, the defendant, Southern, moved for judgment as in case of nonsuit. C. S., 567. The court overruled this motion and the defendant, Southern, duly excepted and assigned error.
At the conclusion of plaintiff‘s evidence, the defendant, Seaboard, moved for judgment as in case of nonsuit. C. S., 567. The court overruled this motion and the defendant, Seaboard, duly excepted and assigned error.
The defendant, Seaboard, then rested without offering testimony and renewed its motion for judgment of nonsuit at the close of all the evidence. The court overruled this motion, and the defendant, Seaboard, duly excepted and assigned error. C. S., 567.
In Moore v. R. R., 179 N.C. at p. 639, we find: “It is the rule prevailing in both State and Federal procedure that on a motion for involuntary nonsuit, equivalent with us to a demurrer to the evidence the facts presented which make in favor of plaintiff‘s claim, must be accepted as true and interpreted in the light most favorable to him.” Certiorari denied. Director General of Railroads v. Moore, 254 U.S. 640; SouthernRailway Co. v. Gray, 241 U.S. at p. 337 (167 N.C. 433).
The defendant, Seaboard, then requested the court in writing to instruct the jury that they cannot consider as evidence against defendant, Seaboard, any testimony offered by the defendant Southern, or by plaintiff in rebuttal. The court refused to so instruct the jury and the defendant, Seaboard, excepted and assigned error. C. S., 565.
The defendant, Southern, offered the conductor of its train at the time of the injury, who started to testify. Defendant, Seaboard, at this point moved the court to instruct the jury that none of this evidence was to be considered against the Seaboard. The motion was overruled and the defendant, Seaboard, excepted and assigned error. We think the court was correct in overruling all the above motions and the instructions prayed for by the Seaboard.
The defendant, Seaboard, admitted that it was engaged in and plaintiff was employed in interstate commerce at the time of his injury. It also admitted that on 10 December, 1927, the day plaintiff was injured, he was engaged in making repairs to Southern box car No. 35869, on the track connecting its line of railroad with that of the Southern.
The Supreme Court of the United States declared the First Federal Employers’ Liability Act invalid. First Employers’ Liability Cases, 207 U.S. 463, 52 L.Ed., 297.
The Second Federal Employers’ Act was held valid. 223 U.S. 1, 56 L.Ed., 327. “The first section provides that every common carrier by railroad while engaged in interstate commerce shall be liable to every employee while employed by such carrier in such commerce or in case of his death, to certain beneficiaries therein named, for such injuryor death, resulting in whole or in part, from the negligence of thecarrier, or its employees, or by defects or insufficiencies due tonegligence in any of its equipments or property. The second section provides that every common carrier by railroad on lands of the United States other than states shall be liable in the same way to any of its employees. The third section prescribes thatcontributory negligence shall not bar recovery, but shall only diminishthe damages, except that no employee injured or killed where theviolation of a safety law for employees contributed to the injury,shall be held to have been guilty of contributory negligence. The fourth section provides that assumption of risk shall not be a defense, where the violation of a safety law contributed to the accident. The fifth section declares all contracts or devices intended to exempt the carrier from liability under the act to be void, except that the carrier may plead as a set-off any sum it paid to the injured employee as insurance or relief fund. Section 6 provides that any action under the act is barred after two years. Section 7 declares that the term `common carrier,’ as used in the statute, shall include the receiver or receivers or other persons or corporations charged with the duty of the management and operation of the business of a common carrier.” (Italics ours.) 2 Roberts Federal Liabilities and Carriers (2d ed.) (1929), part sec. 709, p. 1329.
The defects in the act of 1908 were covered by amendments of 1910. “In the enforcement of the provisions of the act of 1908, the courts held that the right of action given to an injured employee did not survive to his personal representative in the event of his death; that an action instituted in the state court under the Federal Act could be removed to the proper circuit court when the required amount was involved and a diversity of citizenship existed, and that when the jurisdiction of a Federal Circuit Court was based on the fact that the suit arose under a law of the United States, the plaintiff was compelled to sue in the
“The provision of section 2 of the Safety Appliance Act of 1910, requiring all cars of railroads whose lines are highways of interstate commerce to be equipped with `efficient hand brakes,’ unlike the provision respecting power brakes, applies to cars while engaged in switching operations and in train movements as well. The brake must at all times be `efficient.‘” Roberts, supra, part sec. 719, p. 1351.
“The Safety Appliance Act, as finally amended and as supplemented by the orders of the Interstate Commerce Commission, requires the furnishing and maintenance of a considerable number of appliances. . . . Here, also, maybe placed the provision permitting a carrier to refuse to receive fromconnecting carriers or shippers any cars not equipped sufficiently, inaccordance with the first section of the act, with such power or trainbrakes as will work and readily interchange with the brakes in use on itsown cars, as required by the act.” (Italics ours.) Roberts, supra, sec. 716, at p. 1347.
The material part of the Safety Appliance Act applicable to this case provides: “It shall be unlawful for any common carrier subject to the provisions of this act to haul, or permit to be hauled, or used, on its line any car subject to the provisions of this act not equipped with . . .
“The courts are agreed that the Federal Employers’ Liability Act, being a humane and remedial statute, should invariably be given a liberal construction, to the end that the remedy proposed shall be advanced, and that the evil against which it was directed shall be corrected.” Roberts, supra, sec. 711, p. 1337. Section 712: “Moreover, since it is a Federal statute, decisions of the National courts construing the act take precedence over those of the State courts. For example, in determining when a carrier is guilty of negligence under the act; when an employee assumes the risk; what proof creates a dependency in death cases within the meaning of the act; whether the doctrine of res ipsa loquitur applies; whether there is any evidence tending to show liability sufficient for the case to be submitted to the jury; the measure of damages and instructions thereon, are all matters upon which decisions of the National courts control. `As the action is under the Federal Employers’ Liability Act, rights and obligations depend upon it and applicable principles of common law as interpreted and applied in Federal courts.’ (Southern Railway Co. v. Gray, 241 U.S. 333, 60 Law Ed., 1030 (167 N.C. 433, reversed). Where the decisions of the Federal courts on a question under the act are conflicting, then a State court will follow those decisions of the National courts which appear to it to rest on the better reason.” Section 712, pp. 1338-40, Roberts, supra.
In Jamison v. Encarnacion, 281 U.S. at p. 640, Mr. Justice Butler, delivering the opinion of the Court, citing numerous authorities, said: “It is intended to stimulate carriers to greater diligence for the safety of their employees and of the persons and property of their patrons. . . . The rule that statutes in derogation of the common law are to be strictly construed does not require such an adherence to the letter as would defeat an obvious legislative purpose or lessen the scope plainly intended to be given to the measure. . . . The act is not to be narrowed by refined reasoning or for the sake of giving `negligence’ a technically restricted meaning. It is to be construed liberally to fulfill the purposes for which it was enacted, and to that end the word may be read to include all the meanings given to it by courts and within the word as ordinarily used. . . . `Negligence’ is a word of broad significance, and may not readily be defined with accuracy. Courts usually refrain from attempts comprehensively to state its meaning. While liability arises when one suffers injury as the result of any breach of duty owed him by another chargeable with knowledge of the probable result of his conduct, actionable negligence is often deemed — and we need not pause to consider whether rightly — to include other elements.
In proceedings brought under the Federal Employers’ Liability Act, rights and obligations depend upon it and applicable principles of common law, as interpreted and applied in Federal courts; and negligence is essential to recovery. New Orleans N.E. R. R. Co. v. Harris, 247 U.S. 367.
“One of the leading cases under the Federal Employers’ Liability Act was that of Seaboard A.L.R. Co. v. Horton, 233 U.S. at p. 501, reversing this Court (162 N.C. 424). Mr. Justice Pitney said: `It was the intention of Congress to base the action upon negligence only, and to exclude responsibility of the carrier to its employees for defects and insufficiencies not attributable to negligence. The common-law rule is that an employer is not a guarantor of the safety of the place of work or of the machinery and appliances of the work; the extent of its duty to itsemployees is to see that ordinary care and prudence are exercised, to theend that the place in which the work is to be performed and the tools andappliances of the work may be safe for the workmen. Hough v. Texas P. R.Co., 100 U.S. 214; Washington G. R. Co. v. McDade, 135 U.S. 554; Choctaw, O. G. R. Co., v. McDade, 191 U.S. 64, 67.‘” (Italics ours.) Southwell v. R. R., 191 N.C. at p. 157-8 (275 U.S. 64).
“The term `negligence’ has been defined by the National Supreme Court to be the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the exigencies of the situation. Negligence has always relation to the circumstances in which one is placed, and what an ordinarily prudent man would do or omit in such circumstances. Charnock v. Texas R. R. Co., 194 U.S. 432, 48 L.Ed., 1057.” Roberts, supra, sec. 811, pp. 1558-9.
In Baltimore O. R. R. Co. v. Groeger, 266 U.S. at p. 524, we find: “The credibility of witnesses, the weight and probative value of evidence are to be determined by the jury and not by the judge. However, many decisions of this Court establish that, in every case, it is the duty of the judge to direct a verdict in favor of one of the parties when the testimony and all the inferences which the jury could justifiably draw therefrom would be insufficient to support a different finding.”
“It is the well settled rule of practice and accepted position in this jurisdiction, that, on a motion to nonsuit, the evidence which makes for the plaintiff‘s claim and which tends to support her cause of action, whether offered by the plaintiff or elicited from the defendant‘s witnesses,
“Direct or positive proof is not required to show that a negligent act or defect was the cause of an injury to, or death of, an employee engaged in interstate commerce. The manner and circumstances of the occurrence, and all the accompanying surroundings, as proven, may be examined in order to ascertain and determine whether or not an inference that a negligent defect caused the death was a reasonable one.” Roberts, supra, sec. 819, at p. 1572; Goss v. Williams, 196 N.C. 216.
We have set forth at length the law in the Federal courts applicable to this action.
The defendant Seaboard, in its answer, denied negligence, and set up the plea of contributory negligence and assumption of risk. Applying the law as above stated, was the evidence in regard to negligence sufficient to be submitted to a jury? We think so. Plaintiff‘s evidence was to the effect: That he was working on an “exchange track” as a car repairman for the Seaboard and Southern, on 10 December, 1927, at Franklin, Va., and inferentially both defendants contributed to his pay. The evidence was sufficient to be submitted to a jury that he was in the employ of both defendants. That at the time there was an agreement between the defendant railroads in regard to the “exchange track.” The answer of defendant Seaboard admitted that the “exchange track” is used in the transfer of freight cars between it and the Southern under a private contract entered into between them. The Southern on demand of plaintiff produced the contract between them relative to the “exchange track” and that it was in force and effect at the time plaintiff was injured on 10 December, 1927. The defendants are sued as joint tort-feasors. There was evidence aliunde as to said railroads being joint tort-feasors. At least the manner of introduction of the evidence to show this was in the discretion of the court below and there was evidence of cooperation.
In Wigmore on Evidence, Vol. 2 (2 ed.), at latter part of section 1079, at p. 593, we find: “The admissions of joint tort-feasors are receivable against another on the same principle and with the same limitation as those of conspirators; this is merely the same doctrine in its application to civil liability for torts.”
This contract was to the effect that each of the said railroads have “equal rights with the other in and to the use of” the “exchange track,” “so to be jointly owned and operated hereunder.” The maintenance to be paid half by each. Then the responsibility between them for
Near this “exchange track” was a car inspector‘s shanty, with tools which were used by plaintiff in repair work continuously for some six months prior to the injury complained of. Cars were put on the said track by both defendants to pick up in the course of business, and it was used for repairing brakes. Plaintiff repaired cars every day on this track. That is when there was anything wrong with the cars, and made repairs on the bad order cars coming in. Plaintiff had nothing to do with the movement of the cars.
The question and answer in regard to the custom and practice in regard to making light repairs to freight cars on the “exchange track” is competent. A peculiar and special custom is not binding on a person, unless known to him. First Nat. Bank v. Birkhart, 100 U.S. 686. Long established customs and usages are to be judicially recognized as part of the law. Dalev. Pattison, 234 U.S. 399.
The rule is thus stated in Penland v. Ingle, 138 N.C. at p. 457: “The character and description of evidence admissible for establishing the custom is the fact of a general usage and practice prevailing in the particular trade or business, and not the opinions of witnesses as to the fairness or reasonableness of it.” Crown Co. v. Jones, 196 N.C. at p. 211.
On the morning of plaintiff‘s injury, 10 December, 1927, the Seaboard placed a Southern car on the “exchange track” about five minutes before plaintiff went to repair it. When the crippled car was put in the “exchange track” by the Seaboard, the switch on the Seaboard end of the connection track was set for the main line, and there was a derailer on this track and no car could come in, and if it did the derailer would throw it off the track. The Southern car, when put on the connecting track was not in a safe condition for movement. The brake was defective. This car was a few steps from the shanty furnished for plaintiff as repairman. This car was on an incline, wedges under the wheel were placed by plaintiff for holding the car stationary to keep it from moving of its own volition, while he was working under it. Plaintiff was working on the end of the car nearest the shanty, replacing a brake shoe; he was facing the car; he had put a brake shoe in next to the wheel on the inside; the old shoe was worn out. To apply the new one he disconnected the brake under the car, when he got the new shoe in; he stepped back underneath to reconnect the brakes. There
Plaintiff, while under the car performing his duty as a repairman for both defendants, as we think the evidence warrants, the car belonged to the Southern, and in removing a worn out brake shoe the defendant Southern without warning or notice, and earlier than was customary, with unnecessary and harder force than ordinarily used, knocked the crippled car at least a car length and seriously injured plaintiff.
“Again, it is recognized in both jurisdictions that railroad companies in the operation of their freight trains are held to a high standard of care reasonably commensurate with the risks and dangers usually attendant upon the work, and although negligence may not be inferred from the ordinary jolts and jars incident to their operation, it may be imputed where there has been a `sudden, unusual, and unnecessary stopping of such trains, likely to and which do result in serious and substantial injuries to employees or passengers thereon.’ Texas Pacific Ry. v. Behymer, 189 U.S. 469; Texas Ry. v. Archibald, 170 U.S. 665-673; Indianapolis, etc.,Ry. v. Horst, 93 U.S. 291; Jones v. R. R., 176 N.C. 260; Ridge v. R.R., 167 N.C. 510; Suttle v. R. R., 150 N.C. 668; Marable v. R. R., 142 N.C. 557; Con. N. O. T. P. Ry. v. Evans, Admr., 129 Ky. 152.” Lamb v.R. R., 179 N.C. at p. 622.
We think the exception and assignment of error in regard to this line of evidence — sudden, unusual and unnecessary coupling — under
The courts invariably give a liberal construction to the Federal Employers’ Liability Act, it being humane and remedial. It is said by Mr.Justice Butler, in the Jamison case, supra: “While liability arises when one suffers injury as the result of any breach of duty owed him by another chargeable with knowledge of the probable result of his conduct, actionable negligence is often deemed — and we need not pause to consider whether rightly — to include other elements.”
The evidence in matters of this kind can be either direct or circumstantial. The authorities are to the effect that the essence of the fault may lie in omission or commission. The rule applicable may be thus stated by a general confession prayer of one of our churches: “We have left undone those things which we ought to have done; and we have done those things which we ought not to have done; and there is no health in us.”
This omission on the part of the defendant, Seaboard, from the evidence, left no physical health in plaintiff, according to his testimony. As to the spiritual — that is another realm. See Grand Trunk W. R. Co. v.Lindsay, 233 U.S. 42; Chicago R. I. P. R. v. Wright, 239 U.S. 548; Texas P. R. Co. v. Rigsby, 241 U.S. 33; San Antonio A. P. R. Co. v.Wagner, 241 U.S. 476; Spokane C. R. R. v. Campbell, 241 U.S. 497.
In Link v. Seaboard Air Line R. Co., Vol. 156 S.E., at p. 483 (S.C.), an able opinion written by Associate Justice Stabler of the Supreme
The primary cause may be the proximate cause of a disaster though it may operate through successive instruments. Milwaukee St. P. R. Co. v.Kellogg, 94 U.S. 469.
Mr. Chief Justice Waite in delivering the opinion of the Supreme Court of the United States in Grand Trunk Railway Company v. Cummings, 106 U.S. 700, 27 Law Ed. at p. 267, said: “If the negligence of the company contributed to, it must necessarily have been an immediate cause of the accident.”
The rule is that man is bound to contemplate the natural and probable consequences of his own act. Lazarus v. Phelps, 152 U.S. 81.
One is held responsible for all the consequences of his acts which are natural and probable and ought to have been foreseen by a reasonably prudent man. Atchison T. S. F. R. Co. v. Calhoun, 213 U.S. 1.
To relieve the one responsible for the original wrong from liability for injury there must be the intervening of a new and independent cause between the wrong and the injury. Texas P. R. Co. v. Stewart, 228 U.S. 357.
In Roberts, supra, sec. 872, at p. 1701, we find: “The Employers’ Liability Act, however, differs from the other Federal acts regulating railroads in that it states, with some particularity, the basis of civil liability of carriers for injuries to their employees. The terms of the act must be examined to ascertain whether it changes in any way the common-law rules as to proximate cause. The act declares, in section 1, that liability shall exist if the injury or death, as the case may be, was one `resultingin whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, dueto its negligence, in its cars . . . or other equipment.’ In identical language the same conditions of liability are restated in section 2 of the Liability Act. By section 3 contributory negligence is eliminated as a factor in determining liability, and by section 4 assumption of risk is likewise eliminated in those cases wherein a violation by the defendant carrier of any of the Federal safety statutes `contributed to the injury of such employee.’ Disregarding the purely negative influence upon the question of liability of the defense of assumption of risk, and considering only the positive factors, negligence of the employer and want of care on the part of the employee,
With the facts above set forth and the law as stated, and taking all the evidence, circumstantial and direct, the Safety Appliance Act, and the entire facts and circumstances of this case, we think the evidence was sufficient to be submitted to the jury on negligence and proximate cause as to both defendants. The burden is on plaintiff as to negligence and on the defendants as to contributory negligence and assumption of risk. Speas v.Bank, 188 N.C. 524.
“Contributory negligence under the Federal Employers’ Liability Act has been defined by the United States Supreme Court in the following language: `Contributory negligence involves the notion of some fault or breach of duty on the part of the employee, and since it is ordinarily his duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to use such care for his safety as ordinarily prudent employees in similar circumstances would use.’ Seaboard Air Line Ry. Co. v. Horton, 233 U.S. 492, 58 L.Ed., 1062. In another case before the Supreme Court of the United States the following definition of contributory negligence was approved: `Contributory negligence is the negligent act of a plaintiff which, concurring and cooperating with the negligent act of a defendant, is the proximate cause of the injury.’ Norfolk W. R. Co. v. Earnest, 229 U.S. 114, 57 L.Ed., 1096. Roberts, supra, p. 218, sec. 112.” Inge v. R. R., 192 N.C. at p. 531; 273 U.S. 753.
“A servant does not assume the extraordinary and unusual risks of the employment, and he does not assume the risks which would not have existed if the employer had fulfilled his contractual duties. But only those risks are assumed which the employment involves after the employer has done everything that he is bound to do for the purpose of securing the safety of his servants, that is, he does not assume the risk of injury from the negligence of the master.” Richey, Federal Employers’ Liability Act (2 ed.), p. 179; Pyatt v. R. R., 199 N.C. at p. 404.
So far as extraordinary hazards are concerned, an interstate railway employee may assume that the employer and his agents have exercised proper care with respect to his safety until notified to the contrary,
Was defendant, Seaboard, entitled to an instruction that evidence offered by its codefendant, Southern, and by plaintiff, in rebuttal could not be considered against defendant Seaboard? We think not. The evidence on the part of plaintiff was to the effect that defendants were joint tort-feasors. Was Seaboard counsel entitled to the concluding speech to the jury, having introduced no evidence? We think not.
“This question of practice has not been heretofore presented. It is the recollection of the members of this Court that the practice has been, that where one defendant introduces evidence, that gives the right to begin and conclude the argument to the State, and we adopt that view as the better rule. If there were several defendants, the rule claimed by the defendant would be inconvenient.” S. v. Robinson, 124 N.C. at p. 802.
The defendant, Seaboard, relied on Rule 3 of Rules of Practice in North Carolina Superior Courts, as follows: “In all cases, civil or criminal, when no evidence is introduced by the defendant, the right of reply and conclusion shall belong to his counsel.” This rule is not controlling as interpreted by defendant, Seaboard. This action is against joint tort-feasors.
Taking the charge as a whole, we think the court below correctly instructed the jury on the different issues relative to the Seaboard, as to the burden of proof, accurately defined negligence, contributory negligence, proximate cause, assumption of risk, and damages, and applied the law applicable to the facts. We do not think there was error in the admission and exclusion of evidence. We do not find any prejudicial or reversible error which would entitle the Seaboard Air Line Railway Company to a new trial.
As to the defense of the Southern: From the evidence we do not think the Southern can sustain its motions for judgment as in case of nonsuit at the close of plaintiff‘s evidence and at the close of all the evidence, and the court below properly overruled the motions. Nor do we think there was error in the admission and exclusion of evidence, or in the charge of the court below.
In the decision of this case, we are treating this as an action for actionable negligence against joint tort-feasors. The evidence set forth what was said, and the authorities cited, in reference to the Seaboard‘s contentions are also mainly applicable to the Southern. The Southern in its answer denied negligence and denied that plaintiff was an employee. It set up the plea of assumption of risk and contributory negligence, and further “plaintiff failed to display a blue flag, as is the
The evidence as to the blue flag rule and custom in this section at Franklin on the “exchange track” was disputed by plaintiff. From a careful review of the evidence on both sides, and the charge of the court below, this was a question of fact and was left for the jury to determine. The exceptions and assignments of error as to the exclusion of certain general rules and customs not confined to the locality of Franklin were overruled, and in this we can see no error. The question involved was not the rule and custom of a general usage and practice prevailing elsewhere, this would not tend to give plaintiff notice. The decision as to what constitutes usage and practice is heretofore cited. Then again, plaintiff contended if there was ever such a rule of the railroad it was a dead rule as to this “exchange track” and in the Franklin locality.
In Herring v. R. R., 189 N.C. at p. 290, citing numerous authorities, we find: “It is well settled law that railroad companies, in the conduct of their business, have a perfect right to make and promulgate reasonable rules and regulations. To be binding, they must be properly promulgated and in full force and effect — a living rule — and not revoked or abrogated by other inconsistent rules and regulations or orders. With knowledge or acquiescence of the master, either express or implied that they have been habitually violated, they are ordinarily regarded as a dead rule, waived, abrogated or revoked.”
The Southern contended that it was not guilty of negligence and further that “on 10 December, 1927, Conductor McGee (of the Seaboard) phoned that Southern empty box car number 36859 was ready for movement, and that is all the information that I had at the time concerning the car. That was the regular way of notifying me, either by that or the agent. After I got that information I put it down on the record book and put it on the switch list to come out. I gave the directions to Conductor Yarborough as soon as he got in the office.” Yarborough was the conductor of the train that ran into the crippled car while plaintiff was repairing it.
As heretofore shown, there was evidence by the contract between defendants that “equal rights with the other in and to the use of” the “exchange track,” “so to be jointly owned and operated hereunder.” The maintenance to be paid half by each. Then the responsibility between themselves for “injury” to “person” however resulting and “arising by reason of or in connection with the joint use by the parties hereto of the said tracks as aforesaid, shall be distributed as follows,” etc. The responsibility for damages to employees by reason of concurrent negligence
Mr. Justice Holmes in Union Pac. R. Co. v. Hadley, 246 U.S. 330, before quoted, says: “We must look at the situation as a practical unit, rather than inquire into a purely logical priority.”
There was evidence to the effect that the Southern earlier than was customary went on the “exchange track” to get a car which, in the exercise of due care, it knew or ought to have known was being repaired and in making the repair plaintiff would of necessity be under the car; it gave no warning before picking up the crippled car, by ringing a bell or sounding a whistle; it coupled with unusual and unnecessary force; it did not, as was the custom, stop the train before coupling and a member of the crew get on the ground and look around and see if the car was ready to be moved; it had no right, under the Safety Appliance Act, to handle a crippled car. The Seaboard knew, or in the exercise of due care ought to have known, that the Southern car was crippled when it was put by it on the “exchange track” and the plaintiff would of necessity get under the car to repair it; it omitted and neglected to find out if it had been repaired and was ready to be hauled, but omitting this duty it owed plaintiff, the Seaboard agent telephoned the Southern that the empty car was ready for movement. The evidence was to the effect that the whole set-up was equal rights of the use of the “exchange track,” between the Southern and the Seaboard — a “practical unit,” the “joint use” under the contract. The evidence was also to the effect that the negligence of each of the defendants contributed to plaintiff‘s injury, and these negligent acts were the proximate causes that produced the injury, and both are liable as joint tort-feasors. The combined negligence of both produced the injury.
The Southern contended that plaintiff was employed alone by the Seaboard, but plaintiff‘s testimony is to the contrary, as follows: “On 10 December, 1927, I was employed by the Seaboard as car inspector and repairman at Franklin, Va. I was also working for the Southern as repairman; the Seaboard paid me.”
On the record there was sufficient evidence of this fact, direct and circumstantial, at least enough to be submitted to the jury.
The Southern contended that the following charge was error: “In order, however, that a party may be liable for negligence, it is not necessary that he should have contemplated, or even been able to anticipate, the particular consequences which ensued, or the precise injury sustained by the plaintiff. It is sufficient, if by the exercise of reasonable care, the defendant might have foreseen that some injury would result from his acts or omissions, or that consequences of a generally
The general rule adopted in this jurisdiction is repeatedly sustained and thus stated in Hudson v. R. R., 176 N.C. at p. 492: “In support of the first two propositions the defendant relies on the definition of proximate cause, in Ramsbottom v. R. R., 138 N.C. 41, approved in Bowersv. R. R., 144 N.C. 686, and in Chancey v. R. R., 174 N.C. 351, as `A cause that produces the result in continuous sequence, and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed,’ to which we adhere, with the modification contained in Drumv. Miller, 135 N.C. 204, and many other cases, that it is not required that the particular injury should be foreseen, and is sufficient if it could be reasonably anticipated that injury or harm might follow the wrongful act.‘”
The charge above is taken from 21 A. E. Ency. Law (2d ed.), p. 487, quoted in the Hudson case, supra. The Hudson case was against the Seaboard and tried under Federal Employers’ Liability Act. We think the decisions of the Federal Court sustain the charge.
In regard to the third issue: “Was the plaintiff engaged in interstate commerce at the time of his injury?” We think on the issue there was some evidence to be submitted to the jury, and the Seaboard‘s admission, the competency of this kind of evidence on the record has heretofore been gone into. The evidence being to the effect that both defendants were joint tort-feasors.
The Southern contends that the Safety Appliance Act had no bearing on the case. So far as the Southern was concerned, its acts in relation to contributing to plaintiff‘s injury was bottomed on other acts of negligence on its part and this aspect, if so applied to the Southern, is not prejudicial.
It may be that in the joint use of the “exchange track” by the defendants, the Southern knew, or in the exercise of due care ought to have known, of the crippled car, which amounted to evidence of negligence for coupling up and hauling the crippled car under the Safety Appliance Act, and it was one of the proximate causes of plaintiff‘s injury.
The Federal Employer‘s Liability Act, in clear language, says: “For such injury or death resulting in whole or in part, from the negligence of the carrier or its employees,” etc. We find: “In Harton v. Tel. Co., 141 N.C. 455, the following statement of the law is quoted with approval: `To show that other causes concurred in producing or contributing to the result complained of is no defense to an action of negligence. There is, indeed, no rule better settled in this present connection than that the defendant‘s negligence, in order to render him liable, need not be the sole cause of the plaintiff‘s injuries. When two efficient
We do not think the exception and assignment of error as to the X-ray photograph can be sustained. The evidence, if competent, merely corroborated Dr. Vann, and, if error, is not prejudicial. This evidence was cumulative.
Among the many cases cited by defendants, we think the case, which both of the defendants relied on, Chesapeake Ohio Ry. Co. v. Mihas (decided by Supreme Court of U.S., 25 November, 1929), 280 U.S. 102, distinguishable from the present case, as the facts are different. In this action plaintiffs set forth many contentions as to the Southern‘s negligence and it is in evidence that “It was customary for the trains to come into the connection track and stop before coupling to the cars and for a member of the Southern crew to get down on the ground and look around the car and see if it was ready for the Southern to move it.” In the Mihas case, at p. 106, we find: “The evidence, however, is that the notification or warning was exclusively for persons not employees engaged in unloading cars. There was no custom or duty of that kind in respect to employees engaged on or about the tracks. If there was a violation of duty, therefore, on the part of the railway company, it was not of a duty owing to Mihas; and the rule is well established that it is not sufficient for a complainant to show that he has been injured by the failure of another to perform a duty or obligation unless that duty or obligation was one owing to the complainant.” This language in the Mihas case is consonant with the position here taken.
Taking the charge as a whole, we think the court below correctly instructed the jury as to the burden of proof on the different issues relative to the Southern, accurately defined negligence, contributory negligence, proximate cause, assumption of risk, and damages and applied the law applicable to the facts. We do not find any prejudicial or reversible error which would entitle the Southern to a new trial.
The questions involved in the trial of this action were mostly those of fact. The jury has found for plaintiff, in law we can find no prejudicial or reversible error that would warrant a new trial.
No error.
CONNOR, J., concurs in result.