Fleming v. Norfolk Southern R. Co.

• Decision Date: 07 November 1912
• Citation: 76 S.E. 212,160 N.C. 196
• Parties: FLEMING v. NORFOLK SOUTHERN R. CO.
• Court: North Carolina Supreme Court

76 S.E. 212

160 N.C. 196

FLEMING v. NORFOLK SOUTHERN R. CO.

Supreme Court of North Carolina

November 7, 1912

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

Action by George B. Fleming against the Norfolk Southern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

There was allegation with evidence on the part of plaintiff tending to show that on the 18th of August, 1910, plaintiff was the locomotive engineer running a passenger train, 11 and 12 from Raleigh to New Bern and return; that on the return trip from New Bern, via Washington, N. C., as he was approaching the city of Raleigh and about one mile from the station, he collided with a light engine, meaning an engine and tender only, coming from the opposite direction, and by reason of which plaintiff received serious and painful injuries; that plaintiff's engine was drawing a first-class passenger train on the main line, and, while something behind time, was running on schedule and having the right of way; that the collision took place while plaintiff's train was rounding a curve, and shortly after crossing the Seaboard track plaintiff having been signaled so to cross. There was no switch engine on that yard, and the light engine causing such collision was running in violation of rules. Defendant's answer was as follows: "That, as to the allegations of paragraph 3 of said complaint, the defendant says that it is true that on the 18th day of August, 1910, the train which plaintiff was operating as engineer of the defendant collided with another engine, and that, in consequence thereof, the plaintiff suffered some injuries but none of a serious or permanent nature. Except as herein admitted, the allegations of said paragraph 3 of said complaint are denied. (2) That the allegations of paragraph 4 of said complaint are denied. Wherefore the defendant prays judgment that the prayer of the plaintiff be denied, and that the defendant have such other and further relief as may be proper." The following was submitted as the issues arising on the pleadings: "(1) Was the plaintiff injured by the negligence of the defendant as alleged in the complaint? (2) What damage is plaintiff entitled to recover?"

During the progress of the trial defendant proposed to ask plaintiff, a witness testifying in his own behalf, the following questions: "It connected at Washington with train from Norfolk, bringing passengers from Norfolk to Raleigh?" And this further question: "At the time of this occurrence the Norfolk Southern Railroad operated a line of railroad from Norfolk in the state of Virginia passing through Washington, N. C.?" And this further question: "The train that you operated made connections at Washington with a train coming from Norfolk, in the state of Virginia, did it not?" And this further question: "Mr. Fleming, did the train you were operating receive at Washington, from the train coming from Norfolk, mail, express, and baggage?" And this further question: "On the particular day of the occurrence did you receive at Washington a car containing passengers or persons which was coming from Norfolk, and which was destined to Raleigh?" On objection these proposed questions were excluded, and defendant excepted. In connection with these questions and the ruling of the court thereon, the following statement appears and is made a part of the case on appeal: "The defendant stated that it offered to show by this witness and the above questions that the Norfolk Southern Railroad operates a line of railroad from Norfolk to Raleigh. At the time of the occurrence under investigation the train leaving Norfolk in the morning came to Washington, N. C., going thence to New Bern, N. C., and the train on which the plaintiff was engineer on the day of the occurrence under investigation connected with the train leaving Norfolk, Va., for New Bern, N. C., at Washington, and that passengers from Norfolk and mail from Norfolk, baggage and express and cars could be transferred from train running from Norfolk, Va., to train from Washington, N. C., to Raleigh, which the plaintiff, as engineer, was operating, and that, on the occasion of this occurrence, he was transporting a car which left Norfolk and was switched to his train that it might be brought to Raleigh; that the car left Norfolk, Va., that morning on the train running from Norfolk, Va., and, when it arrived at Washington, was switched to train being operated by plaintiff and was then hauled from Washington, N. C., to point of accident (the car containing officials of the company and others). The above questions were asked for the purpose of showing that the defendant railroad company was engaged in interstate commerce, and that the plaintiff was an employé engaged in such commerce at the time of the occurrence. The court, upon objection of the plaintiff, excluded all the evidence above offered upon the ground that defendant claims that under the facts, if the defendant be permitted to show that the defendant was a railroad company engaged in interstate commerce, and that the plaintiff was an employé engaged in such commerce at the time of said occurrence, and that under the acts of Congress regulating interstate commerce the cause of action must be tried thereunder, and the plaintiff has failed to set out facts sufficient to constitute cause of action under said acts of Congress, and the defendant claims the benefit of the said acts."

There was verdict for plaintiff. Judgment, and defendant excepted and appealed, assigning, among other errors, the rejection of the proposed questions, as above stated.

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

Douglass, Lyon & Douglass and J. H. Fleming, all of Raleigh, for appellee.

HOKE J.

It was not seriously contended before us that on the facts in evidence the validity of this trial and judgment could be successfully assailed. It was earnestly urged, however, that the court below made an erroneous ruling in excluding the evidence offered tending to show that defendant's train was engaged at the time in interstate commerce, and this with a view of defeating plaintiff's action on the ground of a failure of proof; the position being that, if the facts suggested were established, plaintiff could only recover under the Federal Employer's Liability Act, which for this purpose should be considered as affording a separate and distinct cause of action. In our opinion, however, the position suggested is not open to defendant on the record. It proceeds upon the theory that plaintiff has stated in his complaint and offered evidence tending to show a cause of action exclusively cognizable in the state courts and sustainable only on principles prevailing here, and which differ from those established by the federal statute. In sections 1 and 2 of the verified complaint it is alleged "(1) That the Norfolk Southern Railroad...