183 S.E. 620 | N.C. | 1936
This is an action for actionable negligence, brought by plaintiff against all of the defendants as joint tort-feasors, alleging damage.
Wachovia Bank and Trust Company, as executor of E. D. Vaughn, commenced an action in the Superior Court of Forsyth County against the Southern Railway Company, J. H. Richardson, and J. P. Stanton, *306 seeking to recover for the alleged wrongful death of E. D. Vaughn, who was killed by a passenger train of the defendant Southern Railway Company at the Fifth Street crossing in the city of Winston-Salem, N.C. on 11 April, 1934.
The plaintiff Wachovia Bank and Trust Company, executor, J. H. Richardson, and J. P. Stanton are residents of North Carolina; the Southern Railway Company is incorporated under the laws of the State of Virginia. J. H. Richardson was the engineer of the train which struck the deceased and J. P. Stanton was the crossing watchman, and according to the complaint (liberally construed) he was on duty at the Fifth Street crossing.
The plaintiff alleges the negligence of the defendants in substance: That J. P. Stanton was acting as watchman for the Southern Railway Company at the crossing where plaintiff's testator was killed, in compliance with the requirements of an ordinance of the city of Winston-Salem that a watchman be stationed at this crossing between the hours of 6:00 a.m. and 12:00 at night; that at the time in question the defendant Stanton was on duty at the crossing and was in the house erected for the watchman, and did not warn the plaintiff's testator of the approaching train, and that deceased, relying on Stanton to warn him, started across the tracks; that the watchman Stanton failed to keep a proper lookout for either the train or pedestrians and traffic, and did not emerge from his shelter or rest house until about the time the train was entering the intersection, and was too late for the deceased to be warned of the danger by seeing or hearing the watchman Stanton; that the watchman Stanton was negligent in not warning plaintiff's testator; that J. H. Richardson, the engineer, carelessly and negligently failed to blow any whistle or ring a bell, or give any other warning of the approach of the train, and proceeded at a high, unlawful, and excessive rate of speed into and upon and across the said intersection and struck the said E. D. Vaughn in the back when he was looking in a southeasterly direction and when he was almost across the said intersection, causing injuries from which he died almost immediately thereafter. That the engineer "failed and neglected to keep any lookout for pedestrians. . . . That the defendant Southern Railway Company, its officers, agents, and servants, had the last clear chance to avoid a collision. . . . That the collision was caused by no fault or negligence on the part of the plaintiff's testator, but was due to and proximately arose on account of the careless and negligent conduct of the defendants Southern Railway Company and J. H. Richardson, and J. P. Stanton."
The defendant Southern Railway Company, in apt time, petitioned the clerk of Superior Court of Forsyth County to remove the case to the United States District Court. This was denied. The Southern *307 Railway Company appealed to the judge of the Superior Court of Forsyth County, and the petition was again denied, and the defendant excepted, assigned error, and appealed to the Supreme Court. While the matter was pending in the Supreme Court the defendant J. P. Stanton was permitted to file a demurrer, and is now before this Court on a demurrer to the plaintiff's complaint on the grounds that it states no cause of action against him. The defendant Southern Railway Company contends: "That no cause of action is stated against the crossing watchman, Stanton (although the allegations of his negligence state a cause of action against the Southern Railway Company). From this it follows that there is a fraudulent joinder of the crossing watchman. With the crossing watchman out of the case, a separable controversy exists between the plaintiff and the Southern Railway Company which entitles the Southern Railway Company to remove this case to the United States District Court." We cannot agree with the contentions of defendant, the Southern Railway Company.
The present action is not founded on contract, but is an action for actionable negligence, instituted against all three defendants as joint tort-feasors.
In Tudor v. Bowen,
"`The term "negligence" has been defined by the Federal 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.,
In the religious realm the duty is thus stated: "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."
It is well settled that a party injured can sue any or all joint tort-feasors for actionable negligence.
In White v. Realty Co.,
It is conceded in the brief of defendant Southern Railway Company that whether or not a cause of action is stated against the watchman Stanton is to be determined by the law of this State. Chicago, R. I. P. R. Co. v.Schwyhart,
It may not be amiss to say that the decisions of other jurisdictions are persuasive, but not binding on us. Whatever may be the holdings in other jurisdictions, in this State an agent or servant, under proper allegations of negligence, which is the proximate or one of the proximate causes of the injury, plaintiff being free from blame, and proof to that effect, is liable to third parties for acts of malfeasance or nonfeasance — commission or omission — done in the scope of his employment. Swainv. Cooperage Co.,
In Barber v. R. R.,
In 18 R. C. L., p. 818, sec. 272, the editor has this to say about this doctrine of nonfeasance: "Under the general rule of agency, an agent is not liable upon contracts which he makes for his principal, and some such idea of nonliability seems to be the foundation of this doctrine. . . . (p. 819) In recent times much criticism has been directed at this `attenuated refinement,' as it has been termed; and the tendency is to repudiate the doctrine of nonliability for nonfeasance, and hold the employee accountable whether his act is properly to be described as misfeasance or nonfeasance." We quote the editor of a note in 20 A.L.R., 97, p. 99, as follows: "An agent who violates a duty which he owes to a third person is answerable to such person for the consequences, whether it be an act of malfeasance, misfeasance, or nonfeasance. Stated in this form, there is probably no case to be found to the contrary. But the doctrine laid down by some text-writers, founded on Lord Holt's dictum in Lane v. Cotton, 1701, 12 Mod., 488, 88 Eng. Reprint, 1466, has caused much confusion in the decisions over a fictitious distinction between acts of malfeasance and misfeasance and those of nonfeasance. . . . Many of the later cases have, however, abandoned it, as have also most of the recent text-writers."
In Jaggard, Torts, 1895, Vol. 1, p. 289, it is said: "The futility of such reasoning on the word `nonfeasance' appears fully from the lack of definiteness of the meaning to be given the term. This solemn legal jugglery with words will probably disappear `if the nature of the duty incumbent upon the servant be considered.' If the servant owe a duty to third persons, derived from instrumentality likely to do harm or otherwise, and he violates that duty, he is responsible. His responsibility rests on his wrongdoing, not on the positive or negative character of his conduct. A wrongful omission is as actionable as a wrongful commission. A driver who injures a third person by his negligence is liable." Lough v. John Davis Co., 59 L.R.A., 802 (Wash.), 1902, at page 804.
In the case of Burrichter v. Chicago, M. St. P. Ry. Co., 10 Fed. (2), 165 (Minn., 1925), plaintiff sued railroad and flagman for injuries received at a crossing. The only negligence alleged was the failure of the crossing watchman to warn. The case was appealed on the ground that no cause of action was alleged against the flagman and that the railroad was entitled to have the case removed. Petition to remove to United States District Court was denied. We quote from the opinion, at page 167, as follows: "In this case the complaint alleges a duty on the part of Ryder (watchman) to warn persons who might be using the public crossing of the approach of the defendant railway's car. This duty was not solely a duty to his master, but was clearly a duty to the public as well. For a failure to properly perform, or a failure to *310
perform it at all, he would be liable." This case also cites with approvalMorey v. Shenango Furnace Co.,
In the case of Hough v. Railroad,
The cases are too numerous to cite which involve accidents and in which the employees of the railroad were held liable for a failure to keep a lookout at the crossing and to warn the plaintiffs, either by horn, bell, whistle, light, or other manner, the employees being engineer, conductor, flagman, fireman, or watchman.
The complaint alleges a joint tort action against J. P. Stanton, and, we think, under the factual situation, rightly so. It seems too well settled that the complaint, having alleged a joint action in tort between the engineer and the Southern Railway Company, that the action is not removable, and there is no separable controversy between the engineer and the Southern Railway Company.
This matter is thoroughly discussed in Morganton v. Hutton,
This matter was settled beyond question long ago in Morganton v. Hutton,supra, and in Alabama Southern Ry. v. Thompson,
In Crisp v. Fibre Co.,
The cases cited by the Southern Railway Company of Johnson v. LumberCo.,
For the reasons given, the demurrer of J. P. Stanton cannot be sustained. On the record, for the reasons given, the judgment of the court below is
Affirmed.