Brady v. Southern Ry. Co.
| Decision Date | 16 December 1942 |
| Docket Number | 668. |
| Citation | 23 S.E.2d 334,222 N.C. 367 |
| Parties | BRADY v. SOUTHERN RY. CO. |
| Court | North Carolina Supreme Court |
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Frazier & Frazier and D.E. Hudgins, all of Greensboro, for plaintiff-appellee.
W.T Joyner, of Raleigh, and R.M. Robinson, of Greensboro, for defendant-appellant.
The question chiefly debated on the appeal was whether the evidence offered by the plaintiff was sufficient to carry the case to the jury. The defendant assigns error in the failure of the court below to sustain its motion for judgment of nonsuit. The determination of this question requires a careful consideration of the evidence adduced at the trial as shown by the record before us. The material facts as thus made to appear may be stated as follows:
The plaintiff's intestate was a member of the train crew in charge of a freight train proceeding north, during the early morning hours of December 25, 1938. There were thirty-seven cars in the train. The crew consisted of five viz.: engineer, fireman, conductor, flagman, and the brakeman, who was plaintiff's intestate. No other person was on or about the train at the time of the injury.
At Hurt, Virginia, the train stopped and backed into a siding or pass track to permit a north bound passenger train to pass. At this place the railroad ran north and south and there were four tracks, counting from west to east, as follows: house track, main line south bound, main line north bound, and a pass track, the easternmost of the tracks. On this pass track, near its northern terminus and a short distance south of the switch was located, on the east rail, a derailer. A derailer is a heavy metal safety device placed near the rail and controlled by a lever to enable it to be pulled close against the rail, so that when so placed the inclined groove and flange on the derailer will serve to guide a car wheel onto and across the top of the rail, and derail the car. Its purpose is to prevent freight cars on the side track, which for any reason might be set in motion, from rolling down the track and onto the main line. The derailer is placed near the down grade end of the side or pass track, and is ordinarily kept closed--that is, pulled up to the rail--so that a car moving toward the switch would be derailed.
On this particular pass track the grade was northward, and the derailer was connected to the east rail and so placed that when closed it would derail a car moving northward, that is with the derailer's upward inclination and flange, for the guidance of a car wheel, extending northward and outward. On the opposite side of the derailer, called by the witnesses the "blunt" or "wrong end," instead of presenting an inclined surface and flange, the derailer presented an end vertically abrupt, extending some three or four inches above the level of the cross-ties on which it was placed and sloping to the right. It appears from the photograph used in evidence that the flange designed to guide the car wheel over the rail when approaching from the "right" side, would tend to deflect the wheel in the opposite direction when the derailer was struck on the "wrong" end.
The freight train arrived at this point about 6 A.M. and the occurrences complained of took place while it was yet dark, and the trainmen used lanterns. The switching operations there were performed in the following sequence: The freight train pulled past the northern switch of the pass track, and the conductor got off, opened the switch and opened the derailer. The train backed into the pass track, and the switch and derailer were closed by the brakeman. There were twelve freight cars at the south end of the pass track which were to be picked up by this freight train. These were south of the south end of the train. The conductor and flagman then went to check up these twelve cars, seventy-five or eighty car lengths from the north end of the pass track. After the passenger train passed, the north switch and the derailer were opened by the brakeman. The engineer, whose testimony was offered by the plaintiff, said he saw the brakeman set the derailer open. The freight train then pulled out on the main line, the switch was closed, and the freight train backed south along the main line track, south of a highway crossing. The brakeman then cut off four empty gondola shaped coal cars next to the engine, and the engineer with these empties, the brakeman on the rear, moved north beyond the switch for the purpose of backing into the pass track and picking up the twelve freight cars, which with the four empty coal cars were to be carried to Lynchburg. On this movement, the brakeman got off at the switch, opened the switch and got on the end of the rear-most coal car, standing on the metal step, on the southeast corner of the car, and with his lantern signalled to the engineer the movement of the engine and cars into the pass track. This cut of cars was moving at the rate of three or four miles per hour. When the lead coal car on which the brakeman was standing reached the derailer, it was found to be closed, and the wheels of the car struck the blunt or wrong end of the derailer, with this result. The front trucks of the lead coal car were derailed to the west, the brakeman was thrown off in some way, and was crushed under the wheels. The rear trucks of the lead coal car remained on the track. The front trucks of the next car were derailed to the east, the front trucks of the third car were derailed to the west, and those of the fourth car to the east. The rear trucks of each of the cars remained on the track. No rails were broken or track torn up.
Here a pertinent question arises. When the freight train pulled out of the pass track onto the main line, who closed the derailer? No witness has testified he saw the brakeman do so, but the conclusion seems inescapable from the circumstances disclosed by the testimony of the engineer (offered by plaintiff) that no one else could possibly have done so. He was the last man to touch the derailer. He opened it, together with the switch, for the freight train to pass out. He closed the switch for the movement of the train south on the main line. It was his job to look out for the switch and the derailer. When the cut of empty cars a few minutes later came back into the pass track the derailer was found closed. No one else but the brakeman had been there or had opportunity to touch it. The engineer and fireman were on the engine. The conductor and flagman were more than a quarter of a mile away. The conductor was checking the twelve cars, and the flagman flagging the south end of the freight train. There was no other trainman, or any other person, present. The opening and closing of the derailer was effected by a lever operated by hand. It was in no sense automatic.
The gravamen of plaintiff's complaint and the evidence upon which she bases her case was that the west rail of the pass track, opposite the derailer, was worn and defective, causing a slope westward, so that when the front wheel of the coal car struck the blunt end of the derailer, the defective condition of the west rail, in its relation to the derailer, caused the car to jump the track to the west; that if the west rail had been level and of proper height the wheels would likely have remained on the track in spite of the jolt from contact with the wrong end of the derailer. The plaintiff offered the testimony of two witnesses to the effect that the west rail was old and worn; that the ball or top of the rail was very thin and badly worn; that metal slivers were picked from the top of the rail and along on each side; that the cross-ties on which the derailer was resting slanted to the west; that the west rail had the date of 1912 stamped on it.
The plaintiff then presented two experienced railroad brakemen who had had ten years' experience as brakemen, switching on yards and making up trains, and offered them as expert witnesses. The court found them to be experts and permitted them to express their opinions in response to hypothetical questions. The hypothetical question propounded to each of those expert witnesses embraced the facts in evidence and was based on the finding by the jury that "the west rail on the pass track and particularly the ball and edges of the same were decayed, rusty, old and badly worn down and worn away; that the cross-ties, on which the pass track at and about the point where the derailer was located, sloped to the west." The question called for the expression of an opinion on these assumed facts as to what caused the derailment of the car upon which the deceased was riding. One of the expert witnesses, Mr. Holden, replied: "In my opinion it was caused by the inferior rail--that is, the rail opposite the derailer on the pass track." The other witness, Mr. Heritage, replied: "The derailment would be due to the defective rail on the west side." This witness also testified, from an examination of a photograph which had been offered to illustrate the testimony of witnesses, that on the derailer there was a groove which the flange of a car wheel coming...
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