Barbee v. Davis

• Decision Date: 22 January 1924
• Docket Number: 389. [a1]
• Citation: 121 S.E. 176,187 N.C. 78
• Parties: BARBEE v. DAVIS, DIRECTOR GENERAL OF RAILROADS, ET AL.
• Court: North Carolina Supreme Court

121 S.E. 176

187 N.C. 78

BARBEE v. DAVIS, DIRECTOR GENERAL OF RAILROADS, ET AL.

No. 389. ^[a1]

Supreme Court of North Carolina

January 22, 1924

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

Action by John P. Barbee against James C. Davis, Director General of Railroads, and others.Judgment for plaintiff, and defendants appeal.No error.

The material facts are as follows:

"This was a civil action to recover damages for an alleged personal injury received by the plaintiff while working as a yard brakeman on the Pomona yards, near the city of Greensboro, N. C., the plaintiff alleging that the North Carolina Railroad Company was the owner of a railroad track from Charlotte, through Pomona and Greensboro, to Goldsboro, all in North Carolina; that the said railroad company, before the injury complained of and the bringing of this action, had leased its roadbed, yards, and privileges to the Southern Railway Company; that the Southern Railway Company had taken possession of the same including the yards at Pomona, and had operated the same until the 1st day of January, 1918; that, thereafter, all of the railroad yards and switch tracks owned by the North Carolina Railroad Company(all being in North Carolina) and controlled or operated by the Southern Railway Company, as lessee, including the locomotives, engines, cars and all other equipment of the Southern Railway Company, were taken over by the United States of America, and since that date and up to and including the date of the alleged injury to the plaintiff, all of the lines, yards, switch tracks and other equipment of the said North Carolina Railroad Company and the Southern Railway Company were continuously in the possession of, operated and controlled by, the Director General of Railroads of the United States, pursuant to certain acts of Congress and proclamations of the President of the United States; that the Pomona yards is a place where cars are switched, and at the time of the injury to the plaintiff, cars were being assembled by the defendant that there are 26 tracks running parallel and close to each other, nearly east and west, and that there are brakemen conductors and engineers who operate the switch engines and cars at Pomona yards, for the purpose of assembling the box cars to be used by the defendant; that the plaintiff, at the time of his injury, was employed by the defendant as a brakeman upon said yard, and was in the performance of his duty as such brakeman; that on the morning of the 8th of April, 1919, the plaintiff was on the Pomona yards, performing his duty as a brakeman; that the engineer on the shifting engine, with whom the plaintiff operated, was running his engine with two cars towards the switch, and it was the duty of the plaintiff to run down the right of way along by the side of the track and by the side of the box cars, so that, at the proper place he might pull the lever of the box cars and uncouple the box cars from the engine, so that they would go on to the switch, as intended by the engineer; that as the engine came back towards the switch, the plaintiff ran, as he was required to do, along between the two tracks, for the purpose of performing his duty; that as he ran down the track towards the switch between the tracks, he stepped upon a stick of wood, which the defendant had negligently allowed to remain in the runway, and which the plaintiff did not see, and that said stick flew up and caught him and threw him upon the ground with great violence and force, whereby his left knee joint was badly damaged, and he was permanently injured.

The defendant admitted that the North Carolina Railroad Company was the owner of a railroad track from Charlotte, through Pomona and Greensboro, to Goldsboro (all in N. C.); that the Southern leased the same and immediately took possession of the road and the property set forth in the lease of the North Carolina Railroad and operated it until January 1, 1918; that, thereafter, the same was operated and controlled by the Southern Railway Company as lessee; that the engines, cars and all other equipment of the Southern Railway Company was taken over by the United States of America, and was continuously operated and controlled by the United States, through the Director General of the United States, pursuant to acts of Congress and proclamations of the President; that the Pomona yards was a place where cars were switched, and at the time of the injury to the plaintiff there were 26 tracks running parallel and close to each other, nearly east and west; that brakemen, conductors and engineers operated switch engines and cars upon the Pomona yards for the purpose of assembling box cars to be used by the defendant; that the plaintiff, at the time of his injury, complained of, was employed by the defendant as a brakeman upon said yard, for a valuable consideration, and at the time of his injury, was in the performance of his duty as such brakeman--but denied the negligence as set forth in the complaint, and pleaded contributory negligence of the plaintiff as the proximate cause of his injury."

The defendants, before going into the trial, filed the following motion:

"The defendants through their counsel, move the court for leave to file an amendment to the original answer heretofore filed in this action by the defendants, to the end that the said defendants may plead the federal Employers' Liability Act(U. S. Comp. St. §§ 8657-8665), and allege additional facts with reference to the plaintiff's injury, to wit, that the plaintiff was, at the time of said injury, employed in, and the defendants were, at the time of said injury, engaged in, interstate commerce; that the rights of the said plaintiff and those of the defendants are controlled and determined by the terms of the said federal Employers' Liability Act; that the plaintiff, at the time of his said injury, was engaged in shifting cars, which cars were destined for points outside of the state of North Carolina, as well as within said state, and which cars were being used in interstate commerce; that the plaintiff's cause of action accrued more than two years prior to the filing of his complaint, and that said action is thereby barred on account of the failure of the said plaintiff to bring his action within the prescribed time.Furthermore, that the defendants be permitted to set up the other facts and matters more particularly recited in the proposed amendment to the original answer, which proposed amendment is hereto attached."

The motion was denied by the court below.To the court's ruling in denying the motion filed and denying the defendant's right to file the amendment, the defendants excepted.

The following were the issues submitted to the jury, with their answers thereto:

"(1) Was plaintiff injured by the negligence of the defendant, as alleged in the complaint?Answer: Yes.

(2) Did the plaintiff by his own negligence contribute to his injury as alleged in the answer?Answer: No.

(3) What damage, if any, is the plaintiff entitled to recover of the defendant?Answer: $6,200."

There are 11 assignments of error, which will be considered in the opinion.

Manly, Hemdren & Womble, of Winston-Salem, and Wilson & Frazier, of Greensboro, for appellants.

J. A. Barringer and R. C. Strudwick, both of Greensboro, for appellee.

CLARKSON J.

The first assignment of error by defendant is as follows:

"The action of his honor in overruling the defendant's motion for leave to file an amendment to the original answer filed in the action, to the end that the said defendants might plead the federal Employers' Liability Act and allege additional facts with reference to the plaintiff's injury, to wit, that the plaintiff was, at the time of said injury, employed in, and the defendants were at the time of said injury engaged in, interstate commerce."

This suit was commenced by the issuance of summons on December 10, 1921, which was served the same day on the defendants.The complaint was filed, and the defendants answered denying any negligence, and, as a further defense, set up the plea of contributory negligence.The facts, as to when, where, and how the plaintiff was injured by the defendants, were fully and with definiteness set forth in the complaint.No request before answer was made by defendants to have complaint more definite or a bill of particulars asked for.

In Allen v. Railway Co.,120 N.C. 550, 27 S.E. 76, this court said:

"When there is a defective cause of action, although in due form, the plaintiff cannot recover unless the court in its discretion, on reasonable terms, allows an amendment.When a good cause of action is set out, but defective in form, the court may require the pleadings to be made definite and certain by amendment.Code, §§ 259 and 261.For this purpose, however, the objector must move in apt time.It is too late after demurrer or answer.Stokes v. Taylor,104 N.C. 394.This motion is addressed to the discretion of the court.Conley v. Railroad,109 N.C. 692;Smith v. Summerfield, 108 N.C. 284."Bristol v. Railroad,175 N.C. p. 510, 95 S.E. 850, and cases cited.

The injury occurred to plaintiff on April 8, 1919.The case was on the docket at issue for some time in the superior court of Guilford county.When the case came on for trial, at May term, 1923, the defendants made a motion to amend their answer and asked that they be allowed to plead the federal Employers' Liability Act, and at the time of the injury plaintiff was engaged in interstate commerce, and that plaintiff's cause of action accrued two years prior to the filing of his complaint, and that the action was on that account barred.The court below refused the motion, and the defendants excepted.This matter was in the sound...