Bordeaux v. Atl. Coast Line R. Co

• Decision Date: 28 April 1909
• Citation: 64 S.E. 439,150 N. C. 528
• Parties: BORDEAUX. v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

64 S.E. 439

(150 N. C. 528)

BORDEAUX.

v.ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina.

April 28, 1909.

1. Trial (§ 160^*)—Motion for Nonsuit-Waiver of Exceptions.

Under Revisal 1905, § 539, providing that defendant may move for a nonsuit after plaintiff has introduced his evidence, but after such motion is refused defendant may waive his exception, and introduce evidence, and again move to dismiss after all the evidence on both sides is in, an exception to the refusal of the court to grant a nonsuit after the plaintiff rests is waived by not renewing it at the end of all the evidence.

[Ed. Note.—For other cases, see Trial, Dec. Dig. § 166.*]

2. Master and Servant (§ 144*)—Rules-Habitual Disobedience—Effect.

A rule by a master, which has been habitually violated with his knowledge or acquiescence, is regarded as waived or abrogated.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 287; Dec. Dig. § 144.*]

3. Master and Servant (§ 144*)—Liability for Injuries to Servant — Places for Work—Railroad Tracks.

Defendant railroad company adopted a rule requiring the placing of a blue flag on a car being repaired, but this rule had not been observed by car repairers when the job was a very short one, and the engineer in charge of the switch engine knew of the custom of the repairers not to observe this rule, and he ran in on a track a car at a rate in excess of the speed limit allowed in the yards, and it hit a car on which plaintiff's intestate was at work, causing his death. Held, that the running in of the car at such excessive speed was culpable negligence.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 287; Dec. Dig. § 144.*]

4. Master and Servant (§ 289*) — Actions for Injuries — Evidence — Questions for Jury—Contributory Negligence.

Evidence, in an action to recover for the death of a servant, held to make the question of the servant's contributory negligence one for the jury.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. § 289.*]

Appeal from Superior Court, Wayne County; Biggs, Judge.

Action by J. T. Bordeaux, administrator of L. W. Bordeaux, deceased, against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

These issues were submitted to the jury: "(1) Was the plaintiff's intestate killed by the negligence of the defendant company? Answer: Yes.

"(2) Did the plaintiff's intestate by his own negligence contribute to his death? Answer: No.

"(3) What damages, if any, is plaintiff entitled to recover? Answer: $6,000 (six thousand dollars)."

W. C. Munroe and Geo. E. Hood, for appellant.

Aycock & Daniels and R. W. Winston, for appellee.

BROWN, J. The evidence discloses a state of facts which, with the exception hereinafter noted, is practically uncontested. Plaintiff's intestate was a car repairer, employed in defendant's switching and repair yards at South Rocky Mount, whose duty it was to repair cars standing on the numerous tracks therein. For the protection of its workmen the defendant had long since adopted and published rules which required those employed in repairing cars on tracks in the yards to place a blue flag on the car, so as to give notice to the switch enginemen not to move such cars, or run other cars in on them, so as to endanger the workmen employed in repairing them. On March 13, 1907, the intestate, with Denby and Wilkens, fellow workmen, went out to repair a tank car on track No. 1, carrying with them a blue flag furnished by the defendant. There was much shifting going on at the time on the yard tracks. Instead of putting out the flag, the repairers discussed the matter, and decided that this was a short job, and to put Denby out to watch, who failed to keep proper lookout. While Bordeaux, the plaintiff's intestate, was under the car repairing it, the engineer of a switch engine kicked or pitched a box car loaded with lumber onto track No. 1, which struck another car, and forced that against the tank car, running it over intestate and killing him.

1. It is contended by defendant that his honor erred in denying the motion to nonsuit. We are precluded from considering this exception because, while made at close of plaintiff's evidence, it was waived by not renewing it at end of all the evidence. Revisal 1905, § 539; Parlier v. Railway, 129 N. C. 263, 39 S. E. 961.

2. It is contended that there is no evidence of negligence. This contention would be well founded but for the fact that there is evidence in the record sufficient to go to the jury that the rule, promulgated by defendant for the protection of those engaged in working around and under cars in its yards, had been allowed by the superintendent and foreman of defendant to relapse into "Innocuous desuetude, " especially as to "short jobs." We admit that the rulings of the courts in regard to kicking cars, or making flying switches at public or much frequented crossings, do not apply to the constant changing or switching of cars that is inevitable in the extensive repair and switch yards of a large railway system. But while such methods may be necessary, it is equally necessary that the company should not only establish proper rules for the protection of employes on the yards, but also should enforce them. A rule to protect employes should be so framed as to guard them, to a reasonable extent, against the consequences, not only of the carelessness of co-employes, but of their own careless-ness also. It is well known that men are prone to run risks in order to save time and trouble, especially where the risks last but a moment, and the precaution necessary to guard against it requires a considerable period of time. A rule which has been habitually violated, with the knowledge or acquiescence of the master, actual or implied, is...