Beck v. Southern Ry. Co

• Decision Date: 18 December 1907
• Citation: 59 S.E. 1015,146 N.C. 455
• Parties: BECK. v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

59 S.E. 1015

146 N.C. 455

BECK.

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

Dec. 18, 1907.

1. Master and Servant — Precaution Against Injury—Railroad Employes. Where a large number of railroad employes cross the company's tracks in going to and from their work, and it has been the custom for 10 years, with the knowledge of the company, to go through, under, or between the cars when they block the tracks, the company is guilty of negligence in not providing some precaution to guard against accidents from the moving of the cars.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 269, 270.]

2. Same—Contributory Negligence—Ques—

tions for Jury.

Where it has been a custom for 10 years, with knowdedge of a railroad, for its employes to pass from their place of work to their homes across a large number of the company's tracks, and, when necessary, to pass through, over, or under cars blocking the way, an employe, who in taking the customary way home was killed while passing between two cars which blocked the way, was not negligent as a matter of law.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1089-1132.]

Brown, J., dissenting.

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

Action by H. H. Beck against the Southern Railway Company. From a judgment of dismissal, plaintiff appeals. Judgment set aside, and new trial granted.

Action to recover damages of defendant for the negligent killing of plaintiff's intestate, who was an employe of defendant in the capacity of tool carrier in its machine shops at Spencer, N. C. Said intestate was a boy about 16 years old, and worked for defendant of nights in the capacity aforementioned. Defendant's shops, and about 40 tracks, are between the two towns—Spencer and East Spencer—and several thousand people live on each side of these tracks, and about 1,-300 people work for defendant in its shops and on its yards. It was the custom for the people, with the knowledge and by permission of defendant, working for the defendant and those living in said towns, to pass over these tracks at their pleasure and in the performance of their duties. Defendant provided two walkways or crossings over its tracks for said persons to cross, and for the past 10 years permitted people to cross thereover in large numbers—several hundred per day— and when these crossings or openings were closed or blockaded by trains or cars, defendant permitted them to cross said tracks by climbing over, under, or between cars, and this has been the custom since the shops were built in 1896. Said intestate lived in East Spencer, and his usual and customary way home, together with all persons living in East Spencer, was to cross over these tracks. The night employes got off of duty about 7 o'clock a. m., and if the tracks were blockaded with cars, and the crossings were blockaded, intestate and others went to their homes by passing between, over, and under cars across said openings or crossings. On the morning in question when said intestate was injured, a string of cars was standing on one of these tracks known as the lead track, and had been standing there for several hours, and to this string of cars were other cars attached by a chain which left a space of sev-eral feet. The first car which was chained to the string of cars was over one of said crossings, which made it necessary for the intestate, carrying out the usual custom, to pass under, between, or over, in order to go his usual way home. This string of cars did not have any engine attached to it, as it was standing still, and there was no watchman or sentinel at said crossing or at any place on said cars, or near there, to give warning or notice of the cars being put in motion, and as said intestate was attempting to pass between the two cars that were chained together, without warning or signal, defendant caused one of its engines to be suddenly and violently shoved back against said cars, and intestate to be caught therebetween and injured and mashed, from which injuries he died. The car that was chained to the string of cars had no bumper or drawhead, so that, when the string of cars was shoved back against it, there was no space left between said cars where intestate was attempting to pass through. At the close of the evidence, the motion of defendant to dismiss was granted, and the plaintiff appealed.

R. Lee Wright and P. S. Carlton, for appellant.

T. C. Linn, for appellee.

CLARK, C. J. The plaintiff was entitled to have this cause submitted to a jury.

There are 30 to 40 tracks in Spencer, which are almost continuously filled with cars, more or less. The railroad company has 1, 300 operatives working in its shops and yards, and living on both sides of the railroad, many of whom have to cross these tracks daily in going from their homes to their work and returning. The defendant's operatives and their families and attendant population constitute several thousand people. These operatives and people, or many of them, have to cross these tracks necessarily very often. The witness whose evidence must be taken as true on this motion says that several hundred people cross these tracks daily, and for 10 years the custom has always been to go through, under, or between the cars, or over them, whenever the tracks are blocked. The defendant, knowing this fact, was guilty of gross negligence, in that it did not provide either subway or overhead bridges, or at least lifting bars, with a guard at each passway. The latter course was ordered (Brown, J.) in Hickory v. Raiiroad, 143 N. C. 451, 55 S. E. 840, where there was only one track. Here there are 40. This is a necessary precaution, and, no precaution of any kind being provided, accidents such as this must necessarily occur. It was also negligence, as this court has over and again declared, to attach the engine to this dead string of cars, and suddenly run them backwards, without warning or signal or any one on the rear of the train to give notice. Ray v. Railroad, 141 N. C. 84, 53 S. E. 622; Hudson v. Railroad, 142 N. C. 202, 55 S. E. 103. There being no bumper or draw head when the plaintiff's intestate was caught between the cars, by the sudden pushing back of the dead string of cars, he could not possibly escape.

This being a nonsuit, it is not necessary to set out all the testimony, but only so much as will show, "with the most favorable inferences which a jury would be authorized to draw from it, " that there was enough evidence to entitle the plaintiff to his constitutional privilege of a trial by jury. The following are verbatim extracts from the testimony:

The plaintiff testified, in part: "There are two towns at Spencer; one on the east and one on the west side of the railroad tracks. And the shops are between the two towns. I worked at the shops. About 1, 300 people are employed there. I guess 400 or 500 of the employes live on the east side of the railroad tracks. About 800 live on the west side. The population of East Spencer is about 500. The custom of those who live on the east side of the railroad, in going to the shops, is to cross the tracks to get to the shops to work. There are between 30 and 40 tracks there. I have seen people going to and coming from their work across these tracks in great numbers. I know about where Grubb was injured. There is an opening leading from the carpenter's shop as far as the shed goes. There is a plank walkway that leads to the carpenter's shop. It is used by people to walk across and to roll hand cars across the tracks. The opening runs north and south. If cars are on the tracks across this opening, people have to climb over or under or through or go around the cars."

Lee Ketchie testified, in part: "I lived on the east side of the railroad during the 3 years and 11 months preceding November 25, 1905. I had to cross the lower end of freight yard, and also shop yard, in order to get to my work. I know what the custom of the defendant's employes in going to and from their work was. This custom has existed ever since the shops were built in the spring of 1896. The custom was to cross the freight yard and to go through, under, or between the cars, or over the top of them. As a general thing, people going from East to West Spencer go across the yard. This custom has prevailed since the shops were built. Several hundred people went backward and forward daily at the time the intestate was hurt and before. The defendant's employes have to cross through between the cars, or over them, to get to their work. My duties often required me to work in the yard; others were required to work in the yard. We had to go from the carpenter shop to the yard down through the opening to the carpenter shop. There was another opening south of the opening to the carpenter shop. It leads from the car shops across the other tracks. The tracks of the opening are laid the same distance apart as the railroad tracks. Bothof these openings run east and west through the sheds. The railroad tracks cross these openings and run north and south. When the openings are filled with cars or trains, the workmen go to their work by crossing the cars, or going over or between them. This is so to a great extent. The crossings are constantly blocked mornings and evenings and several times a day. They were usually blocked in the mornings when we went to work. They were frequently blocked about quitting time in the afternoon. The men, to get to their homes, had to cross the line of cars, or go a considerable distance around them. Those who went home to dinner had to cross these tracks and go out across the freight yard. People could not have gone around and gotten their dinners and gotten back in time to work. I have seen the foremen crawl through cars and under cars numbers of times. November 25, 1905, I was at the shops right near where the intestate was injured. It would not exceed 50 or 60 feet from where I was to where the intestate...