Gerow v. Seaboard Air Line Ry. Co.

• Citation: 123 S.E. 473,188 N.C. 76
• Decision Date: 21 June 1924
• Docket Number: 266.
• Parties: GEROW v. SEABOARD AIR LINE RY. CO.
• Court: North Carolina Supreme Court

123 S.E. 473

188 N.C. 76

GEROW v. SEABOARD AIR LINE RY. CO.

No. 266.

Supreme Court of North Carolina

June 21, 1924

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

Action by Mrs. Louise E. Gerow against the Seaboard Air Line Railway Company. Judgment for plaintiff, and defendant appeals. New trial ordered.

Civil action to recover for death of intestate by the alleged killing by negligence of defendant, engaged at the time in interstate commerce, heard before his honor, T. H. Calvert judge, at November term, 1923, superior court of Wake county.

The intestate, an engineer in employment of defendant company and engaged at the time in interstate commerce, was fatally injured and shortly thereafter died from an explosion of his engine near Youngsville, N. C., on November 26, 1921; the negligence imputed being a defective engine and appliances as well as defective tender and water tank and improper and inadequate water supply, etc. There was denial of liability by defendant company, plea of contributory negligence assumption of risk, etc. On issues submitted the jury rendered the following verdict:

(1) Was the plaintiff's intestate, Herbert W. Gerow, injured and killed by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

(2) Did a violation of a federal statute enacted for the safety of employees contribute to the injury and death of the plaintiff's intestate, Herbert W. Gerow? Answer: No.

(3) Did the plaintiff's intestate, Herbert W. Gerow, by his own negligence contribute to his injury and death, as alleged in the defendant's answer? Answer: Yes.

(4) Did the plaintiff's intestate, Herbert W. Gerow, assume the risk of injury and death, as alleged in the defendant's answer? Answer: No.

(5) What amount of damages, if any, is the plaintiff entitled to recover of the defendant? Answer: $25,000.

Judgment on the verdict for plaintiff, and defendant excepted and appealed.

Murray Allen, of Raleigh, for appellant.

R. N Simms, R. L. McMillan, and Douglass & Douglass, all of Raleigh, for appellee.

HOKE C.J.

Defendant objects to the validity of the recovery had against it, first, because, the verdict on the second issue having been found in the company's favor, the defendant is thereby exonerated, or, in any event, there is such inconsistency in the verdict that no judgment thereon can be properly entered; but we do not so interpret the record. It is the accepted principle with us that a verdict, when ambiguous, may at times be construed and allowed significance by reference to the pleadings, the evidence, and the charge of the court ( Donnell v. Greensboro, 164 N.C. 330, 80 S.E. 377), and, so considered, a perusal of the record will disclose that the finding of the jury on the first issue is broader in its scope and meaning than their verdict on the second, and that there is not such a necessary repugnancy between the two as to vitiate the verdict.

Appellant excepts further and assigns for error the refusal of the court to allow defendant to examine and put before the jury the proposed testimony of R. M. Williams, a witness present and under subp na, who was a boiler inspector in the service of the Interstate Commerce Commission and found to be an expert, and who in the line of his duties made a personal examination of the exploded engine and its condition within two or three days, at most, after the occurrence. On objection by plaintiff, the jury having been sent out, the witness answered the questions propounded, which answers tended in part to disclose that the explosion had been brought about because the water had been allowed to get too low in the boiler, and that the appliances provided to enable an engineer to discover this were apparently in good working order, etc.; the evidence being clearly relevant to the issues and making in favor of defendant. It is ordinarily true that a witness under subp na, present, having personal knowledge of pertinent facts, is competent and compellable to testify, and a litigant is entitled to the benefit of his evidence, unless forbidden by constitutional provision or a valid statute or some recognized principle of public policy. The plaintiff does not question the general principle, as stated, but bases his objection on a federal statute providing for an examination and report of such occurrences by the Interstate Commerce Commission itself, or its duly authorized agents, and also providing for certain other reports, etc. 36 Statutes at Large, p. 350; 8 Federal Statutes Annotated (2d Ed.) p. 1420 (U. S. Comp. St. §§ 8642-8646). In section 4 of the statute (U. S. Comp. St. § 8645), it is also provided:

"That neither said report nor any report of said investigation nor any part thereof shall be admitted as evidence or used for any purpose in any suit or action for damages growing out of any matter mentioned in said

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