Ferebee v. Norfolk Southern R. Co.

• Decision Date: 29 October 1913
• Citation: 79 S.E. 685,163 N.C. 351
• Parties: FEREBEE v. NORFOLK SOUTHERN R. CO.
• Court: North Carolina Supreme Court

79 S.E. 685

163 N.C. 351

FEREBEE v. NORFOLK SOUTHERN R. CO.

Supreme Court of North Carolina

October 29, 1913

Appeal from Superior Court, Wake County; Ferguson, Judge.

Action by W. G. Ferebee against the Norfolk Southern Railroad Company. Judgment for plaintiff, and defendant appeals. New trial for rehearing on the issue of damages.

Where a railroad company negligently left a quantity of boxes near its track and they toppled over and broke the steps of a passing baggage car, resulting in injury to the baggageman defendant was not relieved from liability because an unexpected and unusual storm contributed to the accident.

The action was brought under the Federal Employer's Liability Act (Act June 11, 1906, c. 3073, 34 Stat. 232 [U. S. Comp St. Supp. 1911, p. 1316]); the train on which plaintiff was employed and injured being engaged at the time in interstate commerce, and was submitted and determined on the following issues and verdict:

"(1) Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

"(2) What is the whole amount of damages, if any, sustained by the plaintiff? Answer: $15,000.

"(3) Did the plaintiff by his own negligence contribute to his injury, as alleged in the answer? Answer: No.

"(4) What amount, if any, shall be deducted from the damages sustained by the plaintiff as the proportion thereof attributable to the plaintiff's own negligence? Answer: --"

R. N. Simms, of Raleigh, for appellant.

Ward & Thompson, of Elizabeth City, and Douglass & Douglass and W. H. Lyon, Jr., all of Raleigh, and W. W. Elliott, of Norfolk, Va., for appellee.

HOKE J.

We find no reversible error affecting the determination of the first and third issues. There was evidence tending to show that, at the time of the occurrence, plaintiff was an employé of defendant company as baggagemaster and flagman on a train carrying passengers and freight from Raleigh, N. C., to Norfolk, Va., and that it was a part of plaintiff's duties to go out on the steps of the baggage car as the train moved into a station yard for the purpose of receiving the United States mail and, further, of preventing persons from getting on or off train when it was in motion and to assist the conductor in seeing that the passengers entered and departed from the train in safety; that on June 2, 1912, at 9:15 p. m., the train on which plaintiff was so employed left the station yard in the city of Raleigh on its regular run for Norfolk, and, as it was approaching the station of Wendell, plaintiff, in the line of his duty, went on the platform and started down the steps, and, they having been torn away after the train left Raleigh, he fell through the opening, was dragged some distance by the train, and was fearfully crushed and mutilated and permanently injured; that the night was dark; there was no light on the platform at the time except a little railroad lantern, carried by plaintiff, and which threw no light up or down but just "glared from the sides."

It was further proved that for some weeks or longer prior to the occurrence, on the platform or walkway of a trestle, in the Jones street yard, in the city of Raleigh, there had been left a number of boxes to hold oil cans for engineers and other things; these boxes, 4 feet tall and 13 and 18 inches thick, the same being on the trestle platform, setting up on end and unsecured in any way and about four feet from the rail, leaving them 12 or 14 inches from the car. And the evidence further tended to show that, on the night in question, one or two of these boxes had toppled over from the jar or other causes and had struck and torn away the steps and thus occasioned the injury complained of. It was a negligent act to leave boxes of that shape and size so near the main track of the...