80 F. 260 | U.S. Circuit Court for the District of Western North Carolina | 1897
(A civil action to recover damages for the death of plaintiff’s intestate by reason of the negligence of the defendant companies.) At the close of the plaintiff’s case, the counsel of defendants declined to introduce evidence in defense, and made a motion to the court for an instruction to the jury to render a verdict for the defendants on the issues of fact submitted to them. This motion is, in substance, a demurrer to the evidence, and admits the truth of the matters of fact shown by the testimony. As there is no conflict in the evidence of plaintiff, the question of negligence on the part of defendants is a matter of law to be determined by the court.
The arguments of counsel were elaborate and forcible. Many authorities were cited, and diversities and conflicts of decisions were pointed out and commented upon. The diversities of many of these decisions resulted from the peculiar facts in each particular case. Notwithstanding the confusion in cases involving the liability of railroad companies to employés for injuries caused by the negligence of other employés, there are some principles well setled by numerous decisions of the state and federal courts. A person who enters into the service of a railway company impliedly assumes the risks and hazards usually incident to such employment, including liability to injury caused by the negligence of a fellow servant; and that he will exercise ordinary care to protect himself from obvious danger and injury while engaged in his employment. A railway company, as employer, impliedly engages with an employé that the place in which
There are some differences of decision between the supreme court of this state and the supreme court of the United States as to the complex and unsatisfactory doctrines of fellow servants which have so frequently been subjects of discussion in the courts and in state legislatures. The counsel of plaintiff earnestly insisted that the contract of employment between the plaintiff’s intestate and the defendant company was made and the service was rendered in this state, and that the construction of the terms of the contract and the legal implication arising from the employment should be in accordance with the laws of this state, where the cause of action arose. In Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, the court expressly decided that the question is not one of local law, to be settled by the decisions of the highest court of the state in which the cause of action arises; but is one of general law, to be determined by reference to all of the authorities, and a consideration of the principles underlying the relations of master and servant. In Finley v. Railroad Co., 59 Fed. 419, I attempted to distinguish the facts and principles involved in the case on trial from those presented in Railroad Co. v. Baugh, and follow the decision of the supreme court of this state in Mason v. Railroad Co., 111 N. C. 482, 16 S. E. 698. The circuit court of appeals overruled my views of the law of the case. Railroad Co. v. Finley, 12 C. C. A. 595, 63 Fed. 228. I now feel constrained to strictly observe the-
The facts in the case now before us on trial are few and simple, as there is no conflict, and only slight and immaterial diversity, in the testimony. The deceased, at the time the injury was sustained, was not engaged in the actual service of the company at the time and place of his usual employment; and his mode of transportation was controlled by himself and fellow servants under well-known circumstances of danger and hazard. He had gone to Salisbury, to receive payment of his wages, and was detained until about 9 o’clock at night. He was desirous of attending a social party at a place near the railway about five miles distant. Before he started on the hand car, he had made inquiry at the station, and knew that the fast mail train was due at Salisbury, and was behind the schedule time of arrival. In his daily business of repairing the track he was constantly exposed to the danger of passing trains, and well knew the hazard of entering upon the track with a hand car when a fast train was due and expected, and had the right of way. His conduct in going upon the hand car with full knowledge of the peril may well be held to have been a voluntary assumption of the risk of injury. When he saw the headlight of the rapidly approaching mail train, he stopped the hand car, and he and his fellow servants got off in safety, and the others escaped injury. His attempt to remove the hand car from the rails was the proximate cause of the disaster. This attempt was made in obedience to a hasty request or order of the section foreman to “save the hand car.” In the face of such obvious and imminent danger he was under no obligation to obey the impulsive order of the foreman. He did not exercise reasonable care and caution to secure safety, and his hazardous attempt, under the circumstances, may well be held to be contributory negligence. Even if he thought that he was bound to obey the order, the act of the section foreman was the negligence of a suitable and competent fellow servant in the same line of employment under a common master. Kirk v. Railroad Co., 94 N. C. 625; Thom v. Pittard, 10 C. C. A. 352, 62 Fed. 232; Coulson v. Leonard, 77 Fed. 538; Railroad Co. v. Keegan, 160 U. S. 259, 16 Sup. Ct. 269.
It was insisted by counsel of plaintiff that the injury was caused-by the negligence of the conductor and engineer of the mail train in not ringing the bell at crossings, and running at a greater rate of speed than was allowed by an ordinance of ¿the city of Salisbury. The rule and regulation for ringing the bell at crossings are intended to give notice to persons passing along the highway, and enable them to avoid danger. The right of a railway train to pass over its track is paramount, but persons have a right to pass over crossings made for highways at suitable times and in’ proper manner, and, if any injury results to a careful and observant traveler by failure to ring the bell of a passing train, the company would be responsible in damages sustained. The ordinance of the city of Salisbury limiting the rate of speed of passing railway trains was intended to guard against danger and injury to citizens pass
The counsel of plaintiff, in their argument, called the attention of the court to the recent statute of this state changing and modifying the legal doctrines in regard to fellow servants established in the federal courts and some state courts by judicial decisions founded upon the general principles of the common law. They confidently insisted that, as such statute was manifestly remedial in its nature, and conformed in some degree to the law on the subject announced by the supreme court of this state, it should be construed to have a retroactive effect in this case, at least to the extent of carrying into application the principles of the common law as declared by the supreme court of the state as to the relations of fellow servants. The statute may be expedient, just, and salutary in its objects and purposes, and it shows a manifest legislative intent to remedy what was regarded as existing evils arising from extra state judicial decisions; but, as the statute contains no express provision for retrospective operation, I must conclude to observe the general and sound rule for the construction of statutes, and give this state statute only prospective operation." I may well presume that, if the state legislature had intended to make this important statute retroactive, the purpose would have been dearly, directly, and positively expressed in the body of the statute. If the legislature, in express terms, had given this statute a retrospective operation, then questions of law as to its constitutionality would have been presented to the courts. I will not consider such questions further than to say that, in my opinion, a retrospective operation of the statute in this case would clearly and injuriously affect vested rights acquired by contract, and impose new liabilities, which were not in existence, and were not contemplated by the parties, when they entered into the relation of master and servant for the operation of the railway. At the time this cause of action arose the nonresident corporation defendant was entitled by the laws of the United States to have its obligations, duties, and liabilities passed upon in a federal court, and be
Upon careful consideration of the questions of law and fact involved in this case I am of opinion that the defendants are entitled to an instruction to the jury to render a verdict in their favor on the issues submitted to them.
After the opinion of the court was announced, but before the verdict was formally rendered and entered of record, the counsel of plaintiff asked leave to enter of record a nolle prosequi as to the North Carolina Kailroad, defendant. In the course of their argument they stated that plaintiff sought no verdict, and would not further prosecute the suit, as to said defendant, but no leave was asked to enter a nolle prosequi of record. The motion was disallowed upon the ground that it was not made in apt time, as the announcement of the opinion of the court in this case was equivalent to a rendered verdict.