Graham v. Atlantic Coast Line R. Co., 671

• Decision Date: 04 June 1954
• Docket Number: No. 671,671
• Court: North Carolina Supreme Court
• Parties: GRAHAM, v. ATLANTIC COAST LINE R. CO.

Page 346

82 S.E.2d 346

240 N.C. 338

GRAHAM, v. ATLANTIC COAST LINE R. CO.

No. 671

Supreme Court of North Carolina.

June 4, 1954

Clark & Clark and Nance & Barrington, Fayetteville, for plaintiff, appellee.

Shepard & Wood, Smithfield, and Rose & Sanford, Fayetteville, for defendant, appellant.

BOBBITT, Justice.

The complaint discloses that Graham was chief maintenance man for a section of defendant's signal system along its main line; further, that while engaged in the performance of his duty, he was struck and killed on the main line by the train known as the Bennettsville freight. While these hints that Graham and the defendant were engaged in interstate commerce are discoverable, no allegations to this effect are included in the complaint. Nor is there any allegation with reference to the dependents of Graham. In short, the allegations are appropriate as a statement of a cause of action for damages for wrongful death under the North Carolina statutes now codified as G.S. §§ 28-173, 28-174, and G.S. §§ 60-64 et seq.

During the presentation of plaintiff's testimony it became apparent that both Graham and defendant were engaged in interstate commerce on the occasion of Graham's death. Hence, the plaintiff's sole remedy was under the Federal statute. Mondou v. New York, N. H. & H. R. Co., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A.,N.S., 44; Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. 922, and cases cited therein.

Defendant thereupon moved to dismiss the action 'on the ground that the suit was brought as an intrastate action under the laws of North Carolina, whereas the evidence shows the case arises under the Federal Employers' Liability Act. ' The court overruled defendant's motion to dismiss and allowed plaintiff to amend her complaint so as to include allegations appropriate to an action under the Federal statute, principally allegations that both employee and employer were engaged in interstate commerce and that plaintiff, widow of Graham, was his sole dependent and as such was the beneficiary of any recovery. Defendant excepted and now urges that a new cause of action was introduced more than three years from the date of Graham's death and must be dismissed. 45 U.S.C.A. § 56.

These facts are noted. Graham's death occurred 8 July, 1950. This action was commenced 7 July, 1951. The trial was at October Term, 1953. The facts constituting the tort, the basis of defendant's liability, are alleged in the original complaint. The amendment introduces no new allegations in this field.

Upon the facts alleged, conceding that plaintiff initially was in error in believing that her remedy was under the State statute, can the court permit her, more than three years after Graham's death, to amend her complaint so as to conform to evidence plainly disclosing that the employee and the employer were engaged in interstate commerce on the occasion of Graham's death and so as to allege that the widow was the sole dependent of Graham and the beneficiary of any recovery according to the rule of damages prescribed by the Federal statute? If so, is this a new cause of action as of the date of the amendment?

The power of the trial court under the State statute to allow the amendments is plain. G.S. § 1-163. Whether these amendments introduced a new cause of action, then barred by the Federal statute, is governed by the Federal law. Seaboard Air Line R. Co. v. Renn, 241 U.S. 290, 293, 36 S.Ct. 567, 60 L.Ed. 1006; New York Cent. & H. R. R. Co. v. Kinney, 260 U.S. 340, 43 S.Ct. 122, 67 L.Ed. 294; Williams v. Trustees of New York, N. H. & H. R. Co., 325 Mass. 244, 90 N.E.2d 320.

In Missouri, K. & T. R. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, Ann. Cas.1914B, 134, suit was brought under the Kansas statute by the mother as sole heir and next of kin to recover on account of her son's death. After the time prescribed for commencement of an action under the Federal statute, she was permitted to amend so as to prosecute the action in her capacity as administratrix and to allege that her intestate and the defendant were engaged in interstate commerce on the occasion of his death.

In New York C. & H. R. R. Co. v. Kinney, supra, 'After several trials and about seven years and a half after the suit was begun the plaintiff was allowed to amend his complaint by alleging that at the time of the collision the plaintiff and the defendant were engaged in interstate commerce. ' The Court, speaking through Mr. Justice Holmes, held that these amendments did not introduce a new cause of action but, quoting from the Renn case, supra, "merely expanded or amplified what was alleged in support of the cause of action already asserted * * * and was not affected by the intervening lapse of time.' ' The opinion also quotes from Seaboard Air Line R. Co. v. Koennecke, 239 U.S. 352, 36 S.Ct. 126, 60 L.Ed. 324, this trenchant sentence: "The facts constituting the tort were the same, whichever law gave them that effect.' ' The great jurist neatly sums up the matter in these words: 'Of course an argument can be made on the other side, but when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of opinion that a liberal rule should be applied. ' (Emphasis added.)

While the earlier decisions may have afforded a plausible basis for defendant's position, the later decisions resolve all doubts adversely to defendant; and, upon the authoritative decisions cited, defendant's motion to dismiss by reason of the amendments was properly overruled. New York C. & H. R. R. Co. v. Kinney, supra.

Defendant excepted to the court's action in overruling its motion for judgment of involuntary nonsuit.

Adequate consideration of defendant's position necessitates an analysis of the pleadings. Plaintiff's basic position as to negligence is that defendant turned the unscheduled Bennettsville freight onto the northbound track of the main line at Parkton, giving the locomotive engineer an order showing a clear track all the way to Fayetteville, when it knew that Graham and Gibson had left just thirty minutes or so before by motorcar on said track to check a defective signal south of Hope Mills; and that no information to this effect was given to those in charge of the Bennettsville freight. True, there are allegations as to the speed of the train, the blind curve in the cut north of Rock Fish Creek, the failure to ring the bell or blow the whistle, etc. However, these allegations are made in combination with, rather than independent of, plaintiff's basic position that defendant was negligent under all the circumstances in turning the Bennettsville freight onto this section of the northbound track of the main line.

Defendant alleges contributory negligence on the part of Graham in these respects: (1) that, with knowledge that the Bennettsville freight was to run some time that afternoon, he negligently failed to call the Train Dispatcher from a nearby railroad telephone for a further report as to 'line-up' after completing the signal repair job and before returning to Parkton; and (2) that he negligently proceeded south on the northbound track when he could have removed the motorcar to the southbound track with greater safety at the place where the repair work was done and especially at a point some 600 yards to the north at the Hope Mills station. Defendant further alleges that Graham was negligent in that after he saw the approaching train he remained on the track when by the exercise of due care he could have got off and thus escaped injury and death; and that such negligence was the sole proximate cause of his death.

In this connection, it is noted that the Train Dispatcher at Rocky Mount who gave Graham the 'line-up' for the 'northbound' track about 2 p. m. testified that it was not necessary for Graham to call up again 'under an hour' and that 'they are safe in the line-up for an hour. ' There is also evidence tending to show that the Bennettsville freight left Parkton about 2:35 p.m. and that the motorcar and Graham were struck shortly after 2:40 p. m. Thus, there is evidence tending to support the view that Graham and Gibson could and would have got to the road crossing where they were to remove the motorcar from the northbound to the southbound track, some 200-400 yards south of where the repairs were made and several miles north of Parkton, within an hour from the time Graham at Parkton had the telephone instructions from the Train Dispatcher at Rocky Mount. Too, while Graham had the 'line-up' on the northbound track, he had no information as to 'line-up' on the southbound track.

In order to recover under the Federal Employers' Liability Act, plaintiff must prove that defendant was negligent and that such negligence was the proximate cause, in whole or in part, of Graham's death. Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520. Contributory negligence of Graham would not bar a recovery by plaintiff. The effect would be that his dependent widow could not recover the full amount of damages sustained by her on account of his death but would be barred from recovery of the proportion of such damages attributable to Graham's contributory negligence. 45 U.S.C.A. § 53. And since the 1939 amendment to the Federal Employers' Liability Act, 45 U.S.C.A. § 54, Graham cannot be held to have assumed any risk of his employment when death results in whole or in part from the negligence of any of the agents of the railroad, the effect of the amendment being to obliterate from the law every vestige of the doctrine of assumption of risk. Tiller v Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967. Decisions prior to the 1939 amendment must be considered in relation to the rule as to assumption of risk then embodied in the...