106 S.E. 565 | N.C. | 1921
This is an action to recover damages for the death of the intestate of the plaintiff, caused, as the plaintiff alleges, by the negligence of the defendant in that (1) the defendant failed to keep a proper lookout down the track; (2) that the defendant failed to have a jack-knife or derailer or other appliance on its storage track at Warsaw.
On 9 March, 1908, at about 8:30 o'clock of a dark rainy night the intestate of the plaintiff was brakeman on a freight train going from Wilmington to Rocky Mount. As the train approached Warsaw it ran into a pass track for the purpose of letting a passenger train pass on *492 the main line. After the passenger train passed, the freight train backed onto the main line and there the engine and tender and three cars were cut off for the purpose of placing the three cars on the storage track at Warsaw. The engine and the three cars then passed through the pass track and backed into the storage track where the three cars were left.
The intestate of the plaintiff was in charge of this movement of the cars, and it was his duty after the three cars were placed on the storage track to pass down the cars on the storage track, there being then twenty-six or twenty-seven cars on the track, and see that the cars were coupled together and that the cars on the track were in the clear, by which is meant that they were to be far enough from the pass track that there would be no danger to cars or persons passing on the latter track.
It was the duty of the intestate to see that the cars were in the clear, and this duty was not imposed upon any other employee of the train, and it was the duty of the engineer to observe the signals of the intestate and follow them.
The evidence is that the intestate went to the end of the cars on the storage track and that he then signaled the engineer to back down the pass track, and he, the intestate, got up on the tender of the engine, and as the engine backed the intestate was crushed and killed between the tender and cars on the storage track, which had been left by the intestate too close to the pass track.
The intestate was an experienced brakeman and familiar with the conditions at Warsaw, and knew that there was no jack-knife or derailer there.
It was also in evidence, and uncontradicted, that without a jackknife or a derailer or any marker that an employee could easily tell whether a car was in the clear. That he could do so by standing on the rail of the pass track and reaching out, and if his hand did not touch the car on the storage track it was clear and in a place of safety, or he could observe the curvature of the storage track as it left the pass track and if it was beyond the curve it was in the clear.
A derailer is an appliance on the top of the rail and a jack-knife one that when operated separates two rails so that the ends do not come together. The principal purpose of each is to prevent cars on side tracks from running out on the main line, although they may also operate to indicate the point of clearance.
The evidence shows that when cars were being placed in a track that it was the duty of the employee in charge of the movement where the derailer or jack-knife was located, if there was one in use, and place them so that if a car reached that point it would not be derailed or thrown from the track but would pass over the derailer or jack-knife, *493 and that after the movement or operation was completed, to go to the point and place the derailer or jack-knife so that it would derail a car instead of letting it pass along the track.
It was also in evidence that at Warsaw there were three tracks — a main track, a pass track, and a storage track, and that the storage track was higher at both ends than in the middle. Also that when a track was built with both ends higher than in the middle, derailers, jack-knives, etc., were not in use, although one witness stated that he had known these appliances to be used in four or five side tracks on the Seaboard system.
It was also in evidence that at one time clearance posts were in use, but that these had been abolished upon petition of the employees because dangerous to them in the operation of trains.
At the conclusion of the evidence his Honor entered judgment of nonsuit, and the plaintiff excepted and appealed. There is no evidence to sustain the first allegation of negligence as it was the duty of the engineer only to keep a lookout for the signals of the intestate, who was then in charge of the movement of the train, and to follow his signals, and all of the evidence shows that he performed this duty.
Nor do we think that the failure to have a derailer or jack-knife had anything to do with the death of the intestate, who knew that there was no derailer or jack-knife in the storage track, and whose duty it was to place the cars and see that they were clear of the pass track, and the responsibility for the performance of this duty rested solely on him.
If a derailer or jack-knife had been in the track and he had performed his duty, before pushing the cars into the storage track, he was required to set the appliances so that the cars would pass over them, and their use would not have prevented the cars from reaching the place where the intestate left them.
He also could easily see where the cars were as they were much more easily perceived than the appliances referred to, and, according to the evidence, he could have ascertained definitely that the cars were not in the clear when he signaled to the engineer to move backward.
It appears therefore that the death of the intestate was caused solely by the failure on his part to perform the duty which had been entrusted to him alone, and under such conditions a recovery cannot be sustained under the Employer's Liability Act, which controls this decision, because the intestate was engaged in interstate commerce. *494
In R. R. v. Skaggs,
The syllabus in R. R. v. Wiles,
In Baugham v. R. R.,
Affirmed.