Austin v. Southern Ry. Co, (No. 571.)

• Decision Date: 12 June 1929
• Docket Number: (No. 571.)
• Citation: 148 S.E. 446
• Court: North Carolina Supreme Court
• Parties: AUSTIN. v. SOUTHERN RY. CO. et al.

148 S.E. 446

(197 N. C. 319)

AUSTIN.

v.SOUTHERN RY. CO. et al.

(No. 571.)

Supreme Court of North Carolina.

June 12, 1929.

Appeal from Superior Court, Buncombe County; H. Hoyle Sink, Special Judge.

Action by Jane Austin, administratrix of the estate of Reuben Austin, deceased, against the Southern Railway Company and another, wherein plaintiff took a voluntary nonsuit except as to defendant named. Judgment of nonsuit, and plaintiff appeals. Affirmed.

Geo. M. Pritchard, of Asheville, for appellant.

Thos. S. Rollins, of Asheville, for appellee.

ADAMS, J. The plaintiff's intestate lived with his mother near the depot at Alexander, a station on the defendant's line in Buncombe county. He had been in the regular service of the defendant as a section hand for more than three years and in its intermittent service for five or six years. He was about 20 years of age. On Saturday night, December 3, 1927, the weather was foul; rain, snow, and sleet imperiled the track and the operation of trains. The intestate was engaged as one of the defendant's section crew in the inspection of the roadbed, a part of his service being to walk the track and to look for slides. The limit of his "walk" was about a half mile from the station. During the night several trains passed, four going west and five going east. The defendant was engaged and the deceased was employed in interstate commerce. At 10 o'clock in the night his brother saw him walking the track near the depot. His mother saw him a few minutes after 4 on Sunday morning. Afterwards two trains passed, one going down, the other up, the river. The dead body was found between 6 and 7 o'clock in the morning about 12 feet below the point of the switch, the head about 10 inches from the cross-ties. Blood and a part of the skull were found at the point of the switch, and the lanterns he used, about 5 feet outside the iron rail. There was a cut on the right side of the head, •and it was afterwards noticed that the right arm and the right knee had been injured.

The plaintiff's right to recover damages is dependent upon the Federal Employers' Liability Act (45 USCA §§ 51-59) and the applicable principles of the common law as interpreted by the federal courts. Southern Ry. Co. v. Gray, 241 U. S. 333, 36 S. Ct. 558, 60 L. Ed. 1030. This act provides that every common carrier by railroad while engaging in interstate commerce shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for such injury or death resulting in 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, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. 45 USCA p. 92 § 51. Negligence of the carrier, or of its officers, agents, or employees, or defective or insufficient equipment due to its negligence, is the basis of its liability. Therefore, before a recovery can be had, it must be shown by direct or circumstantial evidence that the carrier was negligent. Il-linois Cent. R. Co. v. Skaggs, 240 U. S. 66, 36 S. Ct. 249, 60 L. Ed. 528. On this point there is a failure of proof. No one saw the accident. There is no evidence as to the circumstances under which the death occurred—no sufficient evidence as to the intestate's position, no evidence of the defendant's actionable negligence. There is evidence that death was caused by the impact of the train, but this is not enough to make actionable negligence; negligence is not presumed from the mere fact that the intestate was killed. Lamb v. Boyles, 192 N. C. 542, 135 S. E. 464, 49 A. L. R. 589; Isley v. Virginia Bridge & Iron Co., 141 N. C. 220, 53 S. E. 841; Southern Ry. Co. v. Gray, supra. In reference to negligence and proximate cause, the evidence leads into the broad field of conjecture or speculation; from it different minds may draw different inferences, all imaginative, none substantial. "When the undisputed...