Ballew v. Asheville & E. T. R. Co.

• Decision Date: 20 December 1923
• Docket Number: 548.
• Citation: 120 S.E. 334,186 N.C. 704
• Parties: BALLEW v. ASHEVILLE & E. T. R. CO. ET AL.
• Court: North Carolina Supreme Court

120 S.E. 334

186 N.C. 704

BALLEW v. ASHEVILLE & E. T. R. CO. ET AL.

No. 548.

Supreme Court of North Carolina

December 20, 1923

Appeal from Superior Court, Mecklenburg County; Bryson, Judge.

Action by Laura Ballew, administratrix of Albert Ballew, deceased against the Asheville & East Tennessee Railroad Company and Reginald Howland. Judgment for plaintiff, and last-named defendant appeals. Error.

The doctrine of contributory negligence as a bar to recovery has no application in an action founded on intentional violence.

Where defendant intentionally injured plaintiff, whether the intention be actual or constructive, contributory negligence does not bar recovery.

The defendant company operated an electric railway between Asheville and Weaverville (intrastate), of which the defendant Howland was the superintendent. The plaintiff's intestate was a motorman, subject to the superintendent's orders. On May 12, 1922, the intestate operated one of the cars, and on his return from Weaverville his car collided with another operated by Howland, and he suffered injuries causing his death.

The issues were answered as follows:

"(1) Was the plaintiff's intestate injured and killed by the negligence of the defendants, as alleged in the complaint? Answer: Yes.

(2) If so, was the conduct of the defendant Rex Howland willful and reckless, and his negligence gross? Answer: Yes.

(3) Did the plaintiff's intestate, by his own negligence contribute to his injury and death, as alleged in the answer? Answer: Yes.

(4) What damage, if any, is the plaintiff entitled to recover? Answer: $35,118.75 net."

By consent the damages were reduced to $12,500.

Judgment for the plaintiff. Appeal by Howland, but not by the railroad company.

Merrimon Adams & Johnston, of Asheville, for appellant.

Mark W Brown, of Asheville, for appellee.

ADAMS J.

In an action brought in a court of common law there could be no recovery for negligence by a plaintiff whose default contributed to the injury, but as against common carriers by railway this principle has been modified by statute. The fact that the employee may have been guilty of contributory negligence is not a bar to recovery, but in such case the damages shall be diminished by the jury in proportion to the negligence attributable to the employee. C. S. § 3467. This statute is effective against the railroad company, but not against the defendant Howland, and the question for decision is whether the answer to the second issue prevents Howland from relying for his exoneration upon the plaintiff's contributory negligence.

The authorities generally hold that the doctrine of contributory negligence as a bar to recovery has no application in an action which is founded on intentional violence, as in the case of an assault and battery; but intentionable violence is not negligence, and without negligence on the part of the defendant there can be no contributory negligence on the part of the plaintiff. The verdict does not show that the intestate's death was caused by intentional violence; but it does show gross negligence and willful and reckless conduct on the part of Howland.

In view of the plaintiff's admission that the defendant did not intend to injure the deceased, we think upon consideration of all the evidence the answer to the second issue signifies nothing more than gross, willful, and reckless negligence. Does this finding of the jury entitle the plaintiff to recover notwithstanding the contributory negligence of the intestate?

Upon the second issue his honor instructed the jury as follows:

"I instruct you, gentlemen, that in order that one may be guilty of willful and wanton conduct, it must be shown that he was conscious of the surroundings, and was aware, from his knowledge of existing conditions, that injury would probably result from his conduct under the circumstances, and, with reckless indifference to consequences, consciously and intentionally did some wrong or omitted some known duty, which produced injurious result."

We must consider this instruction, not with reference to an award of punitive damages (for none were awarded), but with reference to the question just proposed.

In Foot v. Railroad, 142 N.C. 52, 54 S.E. 843, the plaintiff alleged that, while she was traveling in a buggy on a highway near the defendant's road, the defendant's employees operated a passing handcar so as to cause her horse to run away and injure her; and the jury found in answer to the first issue that the plaintiff was injured by the defendant's negligence, and in answer to the second that the negligence was wanton and willful. The defendant contended that the answers were inconsistent, on the ground that a negligent and willful wrong cannot coexist. The court held that the second issue was framed to enable the jury to say whether the wrongful act of the defendant permitted the recovery of punitive damages and that the answer thereto fixed the character of the negligence. Furthermore, it was said a breach of duty can be and frequently is intentional and willful, while the act is yet negligent, and that the idea of negligence is eliminated only when the injury or damage is intentional. Distinction was noted between the willfulness which is referred to a breach of duty and the willfulness which is referred to the injury caused or damage done. In the former there is willful negligence; in the latter there is intentional injury. Willful and wanton negligence will support a verdict for punitive damages, and intentional injury will constitute ground for recovery notwithstanding negligence on the part of the plaintiff.

The authorities hold, however, that the intention to inflict injury may be actual or constructive. In Conner v. Railway, 146 Ind. 430, 45 N.E. 662, it is said:

"The substance of the rule as established by the cases to which we have referred is that, to entitle one to recover for an injury without showing his own freedom from contributory fault, the injurious act or omission must have been purposely and intentionally committed, with a design to produce injury, or it must have been committed under such circumstances as that its natural and reasonable consequence would be to produce injury to others, the actor having knowledge of the situation of those others. There must have been an actual or constructive intent to commit the injury."

McClellan, J., speaking for the Supreme Court of Alabama, stated the rule in this language:

"The true doctrine, and that supported by many decisions of this court, as well as the great weight of authority in other jurisdictions, is that, notwithstanding plaintiff's contributory negligence, he may yet recover if, in a case like this, the defendant's employees discover the perilous situation in time to prevent disaster, by the exercise of due care and diligence, and fail, after the peril of plaintiff's property becomes known to them as a fact, and not merely after they should have known it, to resort to all reasonable effort to avoid the injury." Georgia Pac. R. Co. v. Lee, 92 Ala. 262, 9 So. 233.

And in Central Railway Co. v. Moore, 5 Ga.App. 565, 63 S.E. 644, it is said:

"The court in charging the jury upon the subject should make it plain that it [the rule that contributory negligence is not a defense against willful and wanton negligence] is never applicable unless the defendant's conduct was such as

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