Bivins v. Southern Ry. Co.

• Decision Date: 26 February 1958
• Docket Number: No. 19,19
• Citation: 247 N.C. 711,102 S.E.2d 128
• Parties: E. L. BIVINS and wife, lmogene Bivins, v. SOUTHERN RAILWAY COMPANY, a corporation.
• Court: North Carolina Supreme Court

Page 128

102 S.E.2d 128

247 N.C. 711

E. L. BIVINS and wife, lmogene Bivins, v. SOUTHERN RAILWAY COMPANY, a corporation.

No. 19

Supreme Court of North Carolina.

Feb. 26, 1958

W. T. Joyner, Raleigh, and Proctor & Dameron, Marion, for defendant, appellant.

E. C. Carnes, Marion, for plaintiffs, appellees.

HIGGINS, Justice.

The defendant's appeal presents two questions: (1) Was the evidence sufficient to repel the motion for nonsuit? (2) Did the court commit error by failing to explain 'the legal doctrine of respondeat superior?' The answer to the first question will provide at least a partial answer to the second.

The defendant urgently contends 'there is no evidence the men doing the spraying were agents or servants of the defendant,' and that the court should have sustained the demurrer to the evidence on that ground, or at least should have charged that the burden was on the plaintiff to satisfy the jury the spraying (which caused the damage) was carried on by the agents of the defendant.

Paragraph six of the complaint alleges 'That on the 3rd day of August, 1956,defendant's agents and employees sprayed a dangerous, poisonous, and noxious chemical * * * along the defendant's right of way which passes by the land on which plaintiffs reside.' Notwithstanding the categorical denial of the paragrph, other parts of the defendant's answer contain the following: '* * * the defendant admits that it operates a railroad over a right of way from * * * Old Fort in McDowell County * * * to Asheville in Buncombe County, * * * and that plaintiffs reside on certain lands * * * adjacent to the said right of way * * * and that they carry on upon said lands certain farming and gardening operations. * * * The defendant admits that the chemicals which were sprayed along its right of way, at about the time mentioned in the plaintiffs' complaint, will kill certain types of vegetation on contact * * and that the solution * * * was intended to kill certain vegetation growing upon said right of way.' (Emphasis added.)

The allegations and admissions in the pleadings, together with the undisputed evidence in the case, disclosed the following: On August 3, 1956, a train consisting of a locomotive and four tank cars moved slowly over the defendant's track near Old Fort, North Carolina. A number of men from the train sprayed chemicals along the defendant's right of way for the purpose of killing vegetation thereon. The spray was carried by the wind to plaintiffs' crops, causing the damage complained of.

May the defendant successfully contend the plaintiffs' case must be dismissed because the men who did the spraying from the tank cars were not shown to be the defendant's agents? The defendant was under the duty of maintaining its right of way. Gainey v. Rockingham R. R. Co., 235 N.C. 114, 68 S.E.2d 780; Betts v. Southern R. R., 230 N.C. 609, 55 S.E. 2d 76. Ostensibly, this duty was being performed by spraying chemicals from a train operated over defendant's line. Proof that damage resulted from the negligent operation of a train over defendant's track entitles the plaintiffs to go to the jury. The rule is stated in 22 Am.Jur., Sec. 80, p. 646: 'But a more accurate expression of the rule, in the light of the authorities, is believed to be that when the plaintiff proves that sparks from a railroad locomotive set fire to his property, a prima facie case is presented, and it then devolves upon the railroad to rebut such prima facie case, and unless it does rebut the plaintiff's case and the plaintiff is entitled to recover without further proof.' To the same effect is Fleming v. Atlantic Coast Line R. R. Co., 236 N.C. 568, 73 S. E.2d 544.

Justice Allen stated the rule: 'It lies with the defendant to show that the person in charge was not his servant, leaving him to show, if he can, that the property was not under his control at the time, and that the accident was occasioned by the fault of a stranger, an independent contractor or other person, for whose negligence the owner would not be answerable. 1 Sherm. & Redf., Negligence, 71. Any other rule, especially where persons are dealing with corporations, which can act only through agents and servants, would render it almost impossible for a plaintiff to recover for injuries sustained by defective machinery or negligent use of machinery.' Sutton v. Lyons, 156 N.C. 3, 72 S.E. 4, 5.

'It has never been held, to our knowledge, otherwise than that, if an engine and cars are being used on the road of a company, the presumption is that they are being controlled by such company. We believe it universally understood that a railroad company that is in control and operating a particular railroad is controlling and operating it to the exclusion of all other railroads or persons. * * * There was no pretense but what the defendant was in the exclusive possession of the railroad in question, and the presumption would necessarily follow that an engine and cars found passing over its tracks were under its operation and control.' Brooks v. Missouri Pac. Ry. Co., 98 Mo. App. 166, 71 S.W. 1083, 1086.

'It has also been held that where it is admitted that a certain company owns a railroad the presumption arises, in the absence of anything to the contrary, that it is operated by such company. * * *' Elliott on Railroads, 3rd ed., sec. 2712, p. 660, citing numerous cases.

Manifestly, if the spraying opertions complained of in this case were carried on by persons without the defendant's authority, such would be within the knowledge of the defendant, and it would be under obligation so to allege and to prove. 'If there is anything, then, that relieves the defendant of this liability, it is, under the ordinary rule of law, incumbent upon it to so allege and prove, as this is entirely defensive matter.' Embler v. Gloucester Lumber Co., 167 N.C. 457, 83 S.E. 740, 742.

In the recent case of Alexander v. Seaboard Air Line Railway Co., 221 S.C. 477, 71 S.E.2d 299, 304, the supreme Court of South Carolina had before it a case not unlike this. The plaintiff claimed damage caused by deadly chemicals used by the railroad in clearing its right of way. After entering a general denial, the defendant set up the further defense that the spraying was done by an independent contractor. The court held that the evidence was sufficient to go to the jury and to sustain the verdict; and, further, that, 'Liability...