Farris v. Southern Ry. Co.

• Decision Date: 15 December 1909
• Parties: FARRIS v. SOUTHERN RY. CO. et al.
• Court: North Carolina Supreme Court

66 S.E. 457

151 N.C. 483

FARRIS v. SOUTHERN RY. CO. et al.

Supreme Court of North Carolina

December 15, 1909

Appeal from Superior Court, Burke County; J. S. Adams, Judge.

Action by W. L. Farris, administrator of Stanly Farris, against the Southern Railway Company and others. Judgment for plaintiff and defendants appeal. Affirmed.

A person about to cross railroad tracks is not necessarily negligent as matter of law in failing to continue to look and listen at all times for approaching trains, where he was misled by the railroad company, or his attention was rightfully directed to something else as well.

His honor submitted issues to the jury, presenting (1) the negligence of the defendants; (2) the contributory negligence of the plaintiff's intestate; (3) the last clear chance (4) damages. The jury answered all the issues in favor of the plaintiff, and assessed damages in the sum of $6,000. The case was heard entirely upon the evidence of witnesses offered by the plaintiff. The defendant offered no testimony and moved for judgment of nonsuit at the close of the evidence, which motion was disallowed and defendant excepted. This exception, together with exception taken to the adverse rulings of his honor in admitting certain evidence of the plaintiff, and exceptions to his honor's charge, present the questions for consideration. The evidence offered shows the following facts: Stanly Farris was killed on May 29, 1907, at about 12 o'clock of the day, by being run over by four gondola cars moving on a track in the yard of the defendant Southern Railway Company at Asheville. The intestate was an employé of the defendant company, and had been in its service for about eight months prior to his death. The defendant company was doing on its yards at Asheville a large amount of work, rearranging its tracks, widening its yard, increasing the number of tracks, and building a stock pen. The intestate had been constantly and regularly at work for defendant company, engaged in doing different jobs, as a water boy, carrying water for the other employés, etc., and for a week prior to his death had been assisting in building the stock pens. The stock pens were on the south side of the yards. The intestate lived on the north side of the yards. On the south side the embankment was about 3 or 3 1/2 feet high, on the north side about 25 feet, except at a depression. The employés of the defendant company, numbering from 100 to 150, some of whom worked on the yards, others elsewhere, together with other laborers working for a tannery on the south of the defendant company's yards, crossed the yards to and from the depression in the embankment on the north side to and from the south side from two to three times daily. A whistle, sounded at the roundhouse of the defendant company, gave the signal for its employés to stop at the noon hour for dinner. The place above described, where the large number of employés crossed the yards, was about three-fourths of a mile to a street crossing on the east, and about 700 yards to a street crossing on the west, and from bank to bank was about 100 yards. This place contained 18 or 20 tracks. When Stanly Farris, the intestate, started to cross the yards, on May 29, 1907, at 12 o'clock of the day, there were many cars standing on the tracks to the east of him, about 30 to 35 yards. He crossed the first and second tracks in safety, and was walking down the space, from six to eight feet wide, between these tracks. He was walking westward, and had gone a few steps when an engine, moving on the third track, from the south, at from 35 to 40 miles an hour, passed him, blowing off his hat, which fell on the second track, and, as he stooped to pick it up, he was struck, run over, and killed by the four gondola cars loaded with coal. The defendant company, through the codefendants, Smith, its conductor, and Mooneyham, its engineer, had made what was called "a flying switch," and four coal cars were sent westward on the second track and were moving at the rate of 8 or 10 miles an hour, and the engine took the third track. The switch at which the engine was separated from the coal cars was 25 or 30 yards east of the intestate. No bell was rung, whistle blown, or other signal given by the rapidly moving engine. The coal cars were moving noiselessly, with no watchman on any of the four cars, and no warning given to intestate of their approach. The intestate was about 17 years of age, sober, hardworking, in good health, saving of his wages, and was at the time earning $1.35 per day. From the judgment entered on the verdict, the defendants appealed to this court.

S. J. Ervin, for appellants.

Avery & Avery and Avery & Ervin, for appellee.

MANNING J.

The question first presented for our consideration is the negligence of the defendants. If the evidence does not prove, or tend to prove, a breach of duty by the defendants towards the plaintiff's intestate, and that such breach of duty resulted proximately in the injury complained of, then it must follow that the motion to nonsuit ought to have been allowed for failure of proof on the first issue. In Wilson v. Railroad, 142 N.C. 333, 55 S.E. 257, Mr. Justice Brown, speaking for this court, said: "The attempt to make a running switch across a much frequented street is not only a negligent, but a most dangerous and unwarranted operation, and has been so held by a number of courts. Bradley v. Railroad, 126 N.C. 735, 36 S.E. 181; Brown v. Railroad, 32 N.Y. 597, 88 Am. Dec. 353; Fulmer v. Railroad, 68 Miss. 355, 8 So. 517; Railroad v. Summers, 68 Miss. 566, 10 So. 63; French v. Railroad, 116 Mass. 537; Railroad v. Garvy, 58 Ill. 83; Railroad v. Baches, 55 Ill. 379. It matters not whether the purpose was to 'shunt' the car off on a switch, or to give it force enough to roll along on the same track. It is negligence to permit a car to be 'cut loose,' and roll uncontrolled by any one across a much used crossing." In Allen v. Railroad, 145 N.C. 214, 58 S.E. 1081, the same learned justice said: "The word 'kicking' seems to be used in railroad parlance, as synonymous with making a flying 'switch.' This court has never held such operations to be per se negligence in respect of the employés performing them. It is the attempt to make a running switch when the detached car has no brakeman on it and is under no control that is declared to be negligence, because highly dangerous. Wilson v. Railroad, 142 N.C. 336, 55 S.E. 257, and cases there cited." Vaden v. Railroad, 150 N.C. 700, 64 S.E. 762. In Bradley v. Railroad Co., 126 N.C. 735, 36 S.E. 181, this court held: "A crossing which the public have been habitually permitted to use is treated as a public highway crossing. Russell v. Railroad, 118 N.C. 1098, 24 S.E. 512." In 3 Elliott on Railroads (2d Ed.) § 1265g, this learned writer says: "The practice of making running or flying switches is inherently dangerous, and is so considered by the courts in numerous decisions. The courts have not hesitated to hold railroad companies liable for injuries to trespassers on the track, thus inflicted, on the ground of negligence. The case of this negligence seems specially plain where the cars are sent in swift motion, with no one at the brakes, upon switch tracks commonly used by persons for footpaths and crossings, without objection from the company, though not at a public crossing. It would seem a duty owed by the railroad company, even to trespassers, to station lookouts in such positions on the moving cars that they can watch the tracks ahead of them and warn persons thereon of their danger." Conley's Adm'r v. Railroad, 89 Ky. 402, 12 S.W. 764; Railway Co. v. Crosnoe, 72 Tex. 79, 10 S.W. 342. In Vaden v. Railroad, 150 N.C. 700, 64 S.E. 762, Mr. Justice Brown, speaking for the court, in stating the facts of that case, said: "The evidence for the plaintiff tends to prove that he was killed about 30 feet from where Tomlinson street crosses the tracks. The evidence of the defendant locates him farther from the crossing. All the evidence shows that these switch tracks were situated in a populous part of the city and adjacent to and close by factories, where many people of all ages were employed. At the time the intestate was killed the factory had just closed for the day, and the employés were filling the streets and crossings. The court permitted evidence to the effect that there is much passing by school children, factory hands, and citizens generally along Tomlinson street and in the vicinity of the accident, to which defendant excepted. We see no objection to this evidence. It tended to establish conditions that should have put the defendant on notice as to the necessity for caution in moving its cars at that point. Railroad v. Smith, 93 Ky. 449, 20 S.W. 392, 18 L. R. A. 66."

In the present case, the intestate of plaintiff occupied, toward the defendant company, the relation of employé, and of this relationship the law certainly fixes the company with knowledge. He was not a trespasser in crossing its tracks. He, together with a large number of other employés of defendant company (among them others, not employés, were intermingled), some of whom worked on the yard, others on the stock pens, had been accustomed for about six months to cross the yards at or about the place where plaintiff's intestate was killed, and at least one of the hours during the day when they crossed the yard was indicated by a whistle from the roundhouse of defendant company. Crossing at this point enabled the employés to reach their homes and boarding places more quickly and to return to their work more...