Bailey v. North Carolina R. Co.

• Decision Date: 19 November 1908
• Parties: BAILEY v. NORTH CAROLINA R. CO.
• Court: North Carolina Supreme Court

62 S.E. 912

149 N.C. 169

BAILEY v. NORTH CAROLINA R. CO.

Supreme Court of North Carolina

November 19, 1908

Appeal from Superior Court, Guilford County; Moore, Judge.

Action by Gattie A. Baile, administratrix, against the North Carolina Railroad Company. From a judgment for plaintiff defendant appeals. Reversed.

The action was brought by plaintiff, as administratrix of her son W. L. Bailey, for damages for the death of intestate alleging that the same was caused by the willful negligence of the defendant's lessee, the Southern Railway. The court submitted these issues: "(1) Was the plaintiff's intestate injured and killed by the wanton negligence of the defendant's lessee? Answer. Yes. (2) What damage, if any, has plaintiff sustained? Answer. $7,000." At the conclusion of the evidence the defendant moved to nonsuit. Motion denied. Defendant excepted. From the judgment rendered, the defendant appealed.

That a switchman left a cross-over switch open from 5 to 15 minutes before a resulting wreck does not show wanton negligence towards those on an engine which afterwards stood near the switch; the act not negativing mere forgetfulness or a careless mistake, without evil intent or purpose or consciousness of probable injury.

Wilson & Ferguson, for appellant.

Stedman & Cooke, for appellee.

BROWN J.

The lessee of the defendant operates certain large switching yards near Greensboro, called the "Pomona Yards," in which are laid a number of parallel tracks, upon which are constantly running the switch engines, transfer trains, and the other trains of the company. Two of these tracks are known as the main line tracks, one for south-bound and the other for north-bound trains. There is a cross-over switch used by trains when necessary in crossing from one main line track to the other. The plaintiff's intestate was on switch engine No. 1688 on the night of February 11, 1906, and was killed in a collision near this switch in the Pomona yards with train No. 34, a north-bound passenger train.

The evidence offered in the case, except one rule of the company was introduced by plaintiff. All the evidence bearing on this unfortunate disaster is that of C. T. Malcolm, a brakeman and a survivor of the crew of the wrecked switch engine, who testifies substantially as follows: "I was working on the yard at Greensboro on February 11, 1906; was on engine No. 1688, a switch engine. I was at the yard about the time or just before, train No. 34 was due from the South, and went with the engine to the coal chute after water. There are parallel tracks in the yard, south-bound track and north-bound track. All trains going from Greensboro to Charlotte go on the south-bound and all trains coming to Greensboro from Charlotte, on north-bound. The track that lies nearest south is the north-bound track; the track that lies nearest north, is the south-bound. Engineer Sellers, Conductor Newman, Cary Saunders, and myself were on the switch engine. As we were going down to get water, we saw another train going up toward the yard. A transfer crew was standing on south-bound main line when we came out of the new yard. That transfer train had somewhere between 25 and 50 cars. The engine was shoving the cars. The engineer of the train was Mr. Allred, and the brakemen were Will Logan and C. T. Welker. When an engine is proceeding backwards through a switch, the rear man opens it. The one next to the engine is supposed to close it. C. T. Welker was the front brakeman on this train. After we had gotten water, I first saw the deceased, W. L. Bailey, when we were about two-thirds of the way back to the new yard. He came over the back of the tender, and sat down on the coal gate of the tender. As we got to the switch, we could see the headlight of No. 34 coming toward Greensboro. Just ahead of us was the switch. Somewhere between 5 and 15 minutes before we got to the switch, the transfer train had backed through there; it went across. When No. 34 got to the place where the switch was, it came through the switch. It went from the north-bound track to the south-bound track and there was a wreck with the switch engine No. 1688. I had seen W. L. Bailey just before this wreck, from a minute to three minutes before. The last I saw of him he was sitting on the coal gate, a gate that holds the coal in the tender. He was laughing and talking with Conductor Newman and Fireman Johnson. They are both dead; Henry Sellers, who was on the engine, is dead-all killed at that wreck. I was in about 30 feet of the engine when the wreck occurred; was going toward the switch. I do not know but the switch must have been open. I saw the switch after the collision, somewhere less than 15 minutes. I think Mr. Hinton was with me. Mr. Hinton and all met at the switch, about the same time. It was open at that time. The lock was found at the switch stand. I saw the lock. It was not mutilated. I saw Bailey after the wreck. He was down in the coal. I did not see him taken out." Upon cross-examination the witness stated that Bailey, the deceased, was not a member of the switch engine crew. The first thing he saw of W. L. Bailey after they got the water, the pipe was thrown around, and some water was thrown over the back of the tender, and the engineer, who was giving the engine water, remarked that he came mighty near drowning somebody; that after the engine started to the new yard, and while the engine was going up to the yard, W. L. Bailey climbed from back of the tender over on to the coal, and sat down on the coal. No one gave him permission to come on the engine. The witness further testifies: "I do not know whether the switch was left open or not. I could not say that it was left open. I don't know whether it was locked at the time the collision occurred or not. I do not know whether the lock was taken out afterwards and laid down there, or whether it was out at the time of the collision. I do not know who left the switch open, if it was open. Neither I, nor any member of the crew of the engine I was on, knew anything about it being open. I do not know whether No. 34, when it came in, ran through an open switch, or from some other reason it crossed over." The witness further said that the transfer train Welker was on had passed over the switch "about 15 or 20 minutes" before the collision, and that it was Welker's duty, when his train passed, to close the switch. The rules of the company introduced in evidence require that switches be kept locked for the main track, except when passing trains to or from...