Doles v. Seaboard Air Line Ry. Co.
| Decision Date | 11 September 1912 |
| Citation | 75 S.E. 722,160 N.C. 318 |
| Parties | DOLES v. SEABOARD AIR LINE RY. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Northampton County; Cline, Judge.
Action by J. W. Doles, administrator of Frank Brown, deceased against the Seaboard Air Line Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Where the negligence of an express company in leaving its truck near a railroad track and the negligence of the railroad company in operating its train concurred in causing the death of a passenger, the two companies were joint tort-feasors and as between themselves there was no right of contribution for damages paid for the negligent death of the passenger.
Mason & Worrell and Murray Allen, for appellant.
S. T Stancell, Peebles & Harris, and Gay & Midyette, for appellee.
It is not necessary to make an extended statement of the facts in this case. The plaintiff's intestate, Frank Brown, was killed at Suffolk, Va., while, as alleged, he was boarding the defendant's passenger train at that place, bound for Margaretsville, in this state. The plaintiff's testimony tended to show that the intestate purchased a ticket for his passage from Suffolk to his destination, and was in the act of getting upon the passenger coach just after the conductor had given the call, "All aboard!" when the train was started, "at once after the signal was given," and the intestate, who was unable to gain a foothold because of the speed of the train and the crowded condition of the steps and platform of the car, was knocked under the cars by a truck of the Southern Express Company, which had been left on the platform at the station, within a few feet of the passing train, and killed. One witness testified that the train started with a jerk and "with full force," while passengers were trying to alight from the train and the intestate was attempting to get on the steps, and that plaintiff could have been seen by the engineer and the porter, who called for passengers to get aboard. On the contrary, there was evidence tending to show that the train started at its usual speed, and that intestate was leaving the car, and jumped on the truck, and was killed. There was also evidence that he was warned not to leave the car by the porter, who told him that he would have the train stopped, so that he could get off safely. It may be said, generally, that some of the evidence tended to show negligence on the part of the defendant, which proximately caused the intestate's death, while there was other evidence which tended to prove that the intestate's death was caused entirely by his own fault in jumping from a rapidly moving train.
The court submitted the case to the jury in a charge which fully explained every phase of the evidence and clearly set forth the law applicable to the facts as they might find them to be. The charge of the court was in accordance with the principles laid down in Roberts v. Railroad, 155 N.C. 79, 70 S.E. 1080, and the essential facts of the two cases cannot well be distinguished. That case must control our decision in this one on all the points raised by the defendant, except the contention that the court should not have entered a nonsuit upon the evidence as to the Southern Express Company. The defendant objected to this ruling of the court, and relies upon Gregg v. Wilmington, 155 N.C 18, 70 S.E. 1070, to sustain his objection. But we do not see the analogy between the two cases. In that case, Wolvin's negligence was active and the efficient cause of the injury, while the negligence of the city of Wilmington was merely passive, in allowing the dangerous condition, brought about by Wolvin's negligence, to exist in one of its streets. The city did not actually co-operate with Wolvin in committing the wrong to the plaintiff's intestate. In the Gregg Case, approving what is said by Judge Cooley in his...
To continue reading
Request your trial