Edwards v. Southern Ry. Co.

• Decision Date: 22 September 1937
• Docket Number: 42.
• Parties: EDWARDS v. SOUTHERN RY. CO. et al.
• Court: North Carolina Supreme Court

192 S.E. 855

212 N.C. 61

EDWARDS v. SOUTHERN RY. CO. et al.

No. 42.

Supreme Court of North Carolina

September 22, 1937

Appeal from Superior Court, Swain County; F. D. Phillips, Judge.

Action by Cora Edwards, administratrix of the estate of Marion Edwards, deceased, against the Southern Railway Company and others, wherein the named defendant filed petition to remove the action to the United States District Court for the Western District of North Carolina. Judgment denying the petition, and petitioner appeals.

Affirmed.

The plaintiff in the complaint, of some length and in detail, set forth facts charging all the defendants with actionable negligence in reference to the death of plaintiff's intestate. That L. H. White was the engineer of the train, E E. Ensley conductor of the train, and A. D. Murray the ticket agent, and all joint tort-feasors.

The allegations, in part: "That on the said 6th day of November, 1936, plaintiff's intestate resided in Swain County, North Carolina, some miles from Bryson City, and on the morning of said date left his said home with the purpose and intention of going to Asheville, North Carolina, on business and intended to travel to Asheville as a passenger on a train of the defendant company which left Bryson City about 11:30 o'clock A. M.; that plaintiff's intestate came to Bryson City, as plaintiff is informed and believes and went to the station owned and maintained by the defendant, Southern Railway Company, for the purpose of purchasing a ticket over defendant company's line of railway to Asheville. That while plaintiff's intestate was in and around the defendant company's said station at Bryson City he lost possession of his mental faculties and became crazed and disordered in his mind so that he did not know or realize where he was and was so crazed and disordered in mind that he was unable to care for himself, or realize and understand where he was going or what he was doing; that said condition of his mind was due, as plaintiff is informed and believes, to intoxication or sudden illness, and plaintiff avers that the condition of her intestate was plain and apparent to all while he was in and around the station of the defendant Railway Company; that while plaintiff's intestate was in this condition at and around said station of the defendant company a passenger train owned and operated by the defendant company, known as train #17, arrived at said station enroute to Murphy, North Carolina, and stopped for approximately ten minutes at said station about 12:30 o'clock P. M. That while said train #17 was standing at said station, plaintiff's intestate being crazed and mentally deranged, as aforesaid, and being without mind or power to care for himself, climbed on the baggage car of said passenger train #17, and stood in a position between the tender of the engine and said baggage car in plain view of the servants and employees of the defendant company including the defendants, A. D. Murray, E. E. Ensley and L H. White. That before said train pulled out of said station the plaintiff's intestate hollered and made other demonstrations indicating that he was out of his head and mentally deranged and entirely incapable of taking care of himself. That he was seen while standing in said position before said train pulled out by employees of the defendant railway company who saw plaintiff's intestate's helpless condition and knew and realized that he would be killed unless removed from said dangerous and perilous position. * * * That the defendants, E. E. Ensley, L. H. White, and A. D. Murray, were notified and had actual knowledge that plaintiff's intestate was on said train #17, in said dangerous and perilous place and situation as aforesaid, in a crazed and mentally deranged condition in imminent danger of being thrown under said train and killed; and thereupon it became and was the duty of said defendants, and each of them, to have plaintiff removed from said place of danger on said train; but the defendants, and each of them, knowingly, wilfully and recklessly and wantonly allowed plaintiff's intestate to remain in said place of danger and peril on said train for more than an hour while same was proceeding toward Murphy and failed and neglected to make any effort to have plaintiff's intestate removed from said train and plaintiff's intestate was thereby caused, permitted and allowed to be thrown under the wheels of said train and killed, all to plaintiff's great damage as hereinafter stated. That at the time Train #17 left Bryson City, until plaintiff's intestate was thrown under the wheels thereof and killed, as aforesaid, said intestate was in plain view, standing between the tender and baggage car of said train and hollering in a manner to attract attention and plaintiff alleges that the defendants, and each of them, knew that plaintiff was on said train in said dangerous and hazardous place and position, or by the exercise of ordinary care, the defendants, and each of them, could have learned of plaintiff's presence and that he was mentally deranged, not able to care for himself and was liable at any moment to be hurled beneath the wheels of said train; but said defendants, negligently and recklessly failed to remove plaintiff's intestate from said train and from said dangerous place and situation and as the proximate result of said carelessness and negligence on the part of the said defendants, and each of them, plaintiff's intestate was thrown from his position as aforesaid, under the wheels of said train and killed, all to plaintiff's great damage as hereinafter stated. That the aforesaid careless, tortious, negligent and reckless acts, conduct and omissions of the said defendants, and each of them, directly, materially, concurrently, jointly and proximately contributed to, and were the direct, joint, concurrent and proximate cause of the injury and death of plaintiff's intestate and plaintiff avers that by reason thereof her said intestate was crushed, torn, mangled and killed in the manner aforesaid, all to her great damage in the sum of $30,000.00."

The Southern Railway Company filed petition and complied with the requirements to remove the action to the United States District Court for the Western District of North Carolina, and set forth in detail the reasons therefor.

The clerk of the superior court of Swain county, N. C., rendered the following judgment: "It is, thereupon, Considered and Ordered by the Court that the Motion and Petition of the defendant, Southern Railway Company, to remove the above entitled action from the Superior Court of Swain County North Carolina, to the United States District Court for the Western District of North Carolina, for trial be, and the...