Boney v. Atlantic Coast Line R. Co.

• Decision Date: 03 May 1911
• Citation: 71 S.E. 87,155 N.C. 95
• Parties: BONEY v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

71 S.E. 87

155 N.C. 95

BONEY v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

May 3, 1911

Appeal from Superior Court, Duplin County; Whedbee, Judge.

Action by E. Boney, administrator of G. W. Boney, deceased, against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The opinion of a witness, not present at the accident, is not admissible as to what would have been the effect on a train and its engineer, if the latter had only been running six miles an hour, as the rules required, when he ran into a train slowly moving in the same direction, trying to get out of the way; the jury being equally competent to form an opinion.

One relying on contributory negligence must prove facts from which the inference of contributory negligence must be drawn by men of ordinary reason.

This is an action to recover damages for the killing of the plaintiff's intestate by the defendant.

The plaintiff alleges that his intestate, G. W. Boney, was in the employment of the defendant as engineer, and that he was killed on the main line of the defendant near South Rocky Mount, while on duty, at 2:30 o'clock, a. m. of November 6, 1907, by running into an open switch and coming in collision with another train. The plaintiff alleges various acts of negligence on the part of the defendant. The defendant denies that it was negligent, but admits that the intestate was killed while on duty in the manner alleged.

The defendant also pleads contributory negligence as follows: For a further defense:

First. That the plaintiff's intestate was a locomotive engineer, and at the time of his death was engineer on a passenger train running from Florence, S. C., to Rocky Mount and beyond; that the printed schedule containing the time-table of the defendant's different trains, and also the rules and regulations to be observed by conductors and engineers running their several trains, are furnished when issued to all of its conductors and engineers; that the time-table and schedule which was in force and effect at the time mentioned in the complaint was numbered 10 and went into effect September 15, 1907, at one minute past 12 a. m.; that this schedule or time-table contained the following rules and regulations: "All trains passing through Rocky Mount and South Rocky Mount will approach passenger station at Rocky Mount, N. & C. main line crossover crossover at Bassett street telegraph office South Rocky Mount and middle yard crossover, under full control, expecting to find tracks occupied. Trains will not exceed six miles per hour passing these points. " That the collision mentioned in the complaint happened at one of the points mentioned in the said rules above quoted. A copy of this schedule containing the said rules and regulations was duly given and furnished to the plaintiff's intestate at the time or before the said schedule and regulations and rules went into effect, and it was his supreme duty to inform himself of all rules and regulations and the time-table applying to his district, and in particular to carefully obey and comply with the rules and regulations above quoted. That in addition to this the following rule was issued from the transportation department: "Rocky Mount, N. C., Sept. 9, 1907. Bulletin No. 18. C. & E. and All Concerned: All trains passing Rocky Mount and South Rocky Mount will approach passenger station at Rocky Mount, N. & C. main line crossover, crossing at Basserr street telegraph office South Rocky Mount and middle yard crossover, under full control, expecting to find track occupied. Trains will not exceed six miles per hour passing these points. W. B Darrow, Superintendent Transportation. Richmond Manchester, Weldon, Rocky Mount, South Rocky Mount, Pinners Point, Tarboro, Contentnea, Wilmington, Florence, Selma."

Second. Defendant further alleges that the plaintiff's intestate was guilty of negligence which directly contributed to bring about the injury complained of in the complaint, in that the plaintiff's intestate, while approaching the point where the accident occurred, was given the danger or stop signal by waving a lantern in the usual manner and acknowledged the same with his whistle, but failed to stop his train in time to avoid the accident; that if plaintiff's intestate had obeyed the instructions given in the schedule or time-table and bulletin herein above mentioned he could have stopped his train in time to have avoided the accident, but that at the time he was disobeying and violating the said rules and regulations and instructions aforesaid, and running at a very high rate of speed between 40 and 50 miles per hour.

The following facts seem to be undisputed: (1) That the intestate was running a first-class passenger train, as engineer, at the time he was killed, on the main line of defendant; that the train was going north and the track was straight for more than two miles. (2) That he was killed by running into an open switch, and colliding with another train. (3) That as he approached the switch his train was running at the rate of 30, 35, or 40 miles an hour. (4) That the rules of the defendant required him to approach this switch at six miles an hour. (5) That a switch lamp was maintained at this switch, with a white and red light, and when the white light was turned to the track it indicated safety, and that the switch was all right for the main line, and the red light indicated danger. (6) That the following rules were in force:

"Rule 13, page 15. Any object waved violently by any one on or near the track is a signal to stop." "Rule No. 934. They (engineers) must have a copy of the current time-table, to which they must conform in running their trains, and a full set of signals which they must keep in good order and ready for immediate use." "Rule 27. A signal imperfectly displayed, or the absence of a signal at a place where a signal is usually shown, must be regarded as a stop signal, and the fact reported to the superintendent." "Rule 7, page 14. Employés whose duty may require them to give signals must provide themselves with proper appliances, keep them in good order and ready for immediate use." "Rule 91a, page 31. The speed of a train would ordinarily be that of its schedule, but in cases of delay, may be so moderately increased as in the judgment of the engineer and conductor will be safe and prudent, due consideration always being given to condition of track, weather and all circumstances." "Rule 93, page 32. Within yard limits the main track may be used, protecting against third and fourth class trains. Third and fourth class and extra trains must move within yard limits prepared to stop, unless the main track is seen or known to be clear. Rule 93a, page 32. Engines working within yard limits must clear the time of first-class trains five minutes. Enginemen must know that switches are properly set before they attempt to pull in or out of siding." "B-72. Trains of the first class are superior to those of the second; trains of the second class are superior to those of the third, and so on."

(7) That the switch track led from the switch at which the intestate was killed on the main line, to what is called the "lead track," which ran about parallel with the main line. (8) That as the train on which the intestate was approached the switch (the distance from it being in dispute) another train of the defendant was on the lead track. (9) That this last train consisted of an engine and 15 cars of coal; that the cars were in front of the engine, and the engine was running backwards. (10) That it was the intention of the defendant for this train to remain on the lead track, but when it reached the switch going from the lead track to the main line, this switch was open or out of fix, and the train passed through the switch, across the switch track, through the switch to the main line and on the main line, and as the intestate was approaching it ran back on the switch track, where the collision occurred. (11) That the switch at which the intestate was killed was in the yards of the defendant at South Rocky Mount, and that there were numerous tracks and switches in said yards.

The facts in dispute relate to the condition of the switch at the main line; the condition of the lights at this switch; the conduct of the conductor, named Cole, in charge of the train that came from the lead track, after he discovered the switch at the main line was open; the distance from the switch, at that time, of the train on which the plaintiff's intestate was running, and the conduct of the plaintiff's intestate.

The plaintiff contends: (1) That the switch at the main line was broken, and that the defendant has given no satisfactory explanation why it was so. (2) That if the explanation of the defendant is accepted, that it was caused by the engine and cars running from the lead track, that this would not excuse the defendant, because the engine and cars could not have reached the switch at the main line but for the negligent act of the defendant in permitting the switch at the lead track to be open, or out of fix. (3) That a white light was turned to the main line, indicating safety, or there was no light at the switch, and the purpose of lights at the switch is not only to show its condition, but also its location. (4) That at the time the conductor, Cole, discovered the switch was broken he was at the switch, and the plaintiff's intestate was distant 1 1/4 miles; that he (Cole) could then have turned the red light to the main line, and if he had done so it would have been seen, and the train on which the intestate was could have been stopped. (5) That, instead of doing so, he waited until the intestate was in 25 yards of the switch before he gave...