Hamilton v. Southern Ry. Co, No. 249.

Docket NºNo. 249.
Citation158 S.E. 75
Case DateApril 01, 1931
CourtUnited States State Supreme Court of North Carolina

(200 N.C. 543)
158 S.E. 75

HAMILTON.
v.
SOUTHERN RY. CO. et al.

No. 249.

Supreme Court of North Carolina.

April 1, 1931.


[158 S.E. 76]

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

Action by R. A. Hamilton against the Southern Railway Company and another. Judgment for plaintiff, and defendants appeal.

No error.

In speaking of the Southern Railway Company, it will be referred to as the "Southern" and the Seaboard Air Line Railway Company, as the "Seaboard."

[158 S.E. 77]

This is an action in the final analysis for actionable negligence, brought by plaintiff against the defendants as joint tort-feasors. The plaintiff contends that there was a track at Franklin, Va., in the shape of a semicircle, connecting the two defendants' railroads that has parallel lines, known as an "exchange track." The main line of the Southern was on the east side and the Seaboard on the west. That this "exchange track" was used for the purpose of transferring cars from the Southern to the Seaboard track, or from the Seaboard to the Southern track. That on October 27, 1913, there was a contract entered into in full force at the time of plaintiff's injury, between said defendant railroads. The contract in part, reads: "(4) The portions of said track a joint interest in which is hereby conveyed aggregating 1079 feet. * * * That each party hereto shall have equal rights with the other in and to the use of said portions of said track so to be jointly owned and operated hereunder, as aforesaid, but shall so use the same as to cause the least practicable interference with, interruption of, danger or delay to, the operating of the other party hereto thereupon." The maintenance is to be paid half by each. Provision is made in the joint contract as to liability for damages: "(7) That the responsibility of the parties hereto, as between themselves, for the defense or payment of any and all claims, demands, suits, judgments or sums of money to any person accruing for loss, injury or damage, however resulting, either to person or estate, and arising by reason of, or in connection with the joint use by the parties hereto of the said tracks, as aforesaid, shall be distributed as follows, that is to say, " etc. "(b) When the proximate cause of any such damage shall be negligence to which employees of both parties hereto shall have contributed, then each party hereto shall bear all loss incident to any injury to or damage of its own property; but the responsibility for all loss or damage accruing to employees or third persons or corporations, not parties hereto, by reason of such concurrent negligence, shall be borne by the parties hereto in equal contribution."

On December 10, 1927, and for about six months prior thereto, the plaintiff was in the employ of the Seaboard on this "exchange track" as car inspector and repairman, and also working for the Southern as repairman. The Seaboard paid him, but inferentially the Southern contributed to his pay. Freight that was to be transferred to the Southern would go over the connecting tracks, also freight to be transferred to the Seaboard. Between the two was a state highway grade crossing. Between the Seaboard tracks and the highway was the car inspector's shanty used by plaintiff.

Plaintiff testified, in part:

"They used this connection track for other purposes, they put cars in there for the Sea board to pick up, and they would put cars in there for the Southern to pick up the next day, and for moving cars from the Southern to the Seaboard and back. It was used for repairing brakes. I went to work at Franklin, Va., in July, 1927, and was constantly employed there from that time until I was injured. * * * We repaired cars there every day on this track; when a train came in and there was something wrong with the car I would get the car and repair it. I had nothing to do with the placing of cars on the track. I made repairs to those bad order cars coming in. I made repairs on that track all the time I was there. Southern trains usually came in on that connection track anywhere between 10:45 and 11:00 o'clock to pick up cars; the passenger train was due at 10:58. On December 10, 1927, the train came in from the Southern on the connection track between 9:15 and 9:30 in the morning. I had never seen it there as early as that before. It was a switcher out of Portsmouth. * * *

"Q. During your entire employment there what was the custom and practice with respect to making light repairs to freight cars? (Objection by defendants; overruled. Defendants except.) A. The custom and practice was to repair them at different places wherever it was convenient; around the yard limits where it was convenient, and I repaired some over the river and some on this connection track and in different places. * * * My tools were in the shanty. I had nothing to do with the movement of cars. On the morning of December 10, 1927, I was applying a brake shoe on a Southern car on the connection track, located just a few steps from the shanty toward the highway, and I think it was East. It was toward the Southern track. That car was placed there about five minutes before I went to repair it. Be-Sore I made repairs to it, it was not in safe condition for movement. It had a defective brake. * * * I was working on the end of the car in the opposite direction from which the Southern train came. It would be hard to see a train coming from the Southern to the Seaboard because there is a big bank on the inside of the curve. * * *

"Q. State whether or not you had repaired cars on this connection track for the period of time you had worked prior to December 10th, 1927? A. Yes.

"Q. What was the custom of the crew of the Southern when they would come in the connection track to get cars from the Seaboard for the Southern? A. It was customary for the trains to come into the connection track and stop before coupling to the cars and for a member of the Southern crew to get down on the ground and look around the car and see if it was ready for the Southern to move it.

"Q. State whether or not that had been the custom during the entire time you had

[158 S.E. 78]

worked there for the Southern and the Seaboard? (Objection by defendants. Overruled. Defendants except.) A. Yes. * * * I was working on the end of the car nearest the shanty, replacing a brake shoe. I was connecting a brake under the car. I was facing the car, I had to put a brake shoe in and that is next to the wheel on the inside, and the old shoe was worn out, and to apply the new one I had to disconnect the brake under the car, and I got a new shoe in and stepped back underneath to reconnect the brakes. There is a piece of casting that extends toward the end, and there is a lever piece to the casting, and there are several places where you tighten them. I earned around $145.00 per month at this place. I did not have any notice or warning of any kind that any car or train was coming over that connection track during that hour. I did not ever, at any time, see that train or car come in over that track from the Southern end at that hour of the day. * * * I was performing my services like I had been and making the light running' repairs. This was the kind of repair that I was required to make. Replacing parts is a light repair. Performing the service I was performing required me to be in the position that I was in at the time referred to. While I was engaged in the performance of my duties the Southern from the other end came in over this track and hit the car that I was working on and knocked me up under it and dragged me, squeezed me and mashed me at the same time.

"Q. State whether or not any signal was given of the approach of that train? A. No; I never heard a sound of it. I never heard a sound of any signal. I had no knowledge of the approach of the train until the collision occurred. Wedges under the wheel were holding the car stationary upon which I was working, sufficient to keep it from moving of its own volition. It was a hard blow, and it was knocked the length of the car, and I couldn't get out, and give an alarm that I was hurt. It dragged me the distance of the car."

The length of the car was between 30 and 40 feet. Plaintiff testified further that blue flags were "not used for making repairs on a transportation yard. * * * I was just broke to pieces and my chest, back and head seemed like it was crushed. The left jaw was broke, and my eyes swollen so that I could not see. I never have closed my teeth on one side since, and they do not come together. * * * I am not able now to close my teeth and chew food as I did before. They did not do anything to the jaw at the hospital. My back and shoulder pain me all the time; when I try to erect myself it hurts. I am deformed and I am very much stooped over. The left shoulder is one or two inches lower than the right one since I was injured. The left shoulder was broken. The bottom of that shoulder is where I am troubled, and it never has been right." Plaintiff made no request for this car to be removed. "I could not lean out to the side and see. I would not see around the bend on account of the curve and the high bank. That is the way I had done it since I had been there. If I needed assistance I would call on the section people. I suppose if I had needed any one that morning to help me I would have called on the section force and I suppose they would have come. I had repaired cars on other tracks. The derailer had been set on the track toward the point which the Seaboard came in. No train could come in over that unless the derailer and switch were changed. * * * I was making repairs at Franklin in the same manner in which I theretofore made repairs at Raleigh. In this case I did not know that the car was going to be moved by the Southern or any other train. The connection track was the most convenient place in the yard to make these repairs. No assistant was necessary in making that repair.

"Q. What about the force with which the...

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18 practice notes
  • Wachovia Bank &. Trust Co v. Southern Ry. Co, No. 751.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 22, 1936
    ...48 L.Ed. 1057.' [2 Roberts Federal Liabilities and Carriers (2d Ed.) (1929)] 811, pp. 1558, 1559." Hamilton v. R. R., 200 N.C. 543, 555, 158 S.E. 75, 82. In the religious realm, the duty is thus stated: "We have left undone those things, which we ought to have done; And we have done those t......
  • State v. Smith, No. 652
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 30, 1953
    ...State v. Robinson, 124 N.C. 801, 32 S.E. 494; State v. Raper, 203 N.C. 489, 166 S.E. 314; Hamilton v. Southern R. R. Co., 200 N.C. 543, 158 S.E. 75. Assignments of Errors to the Smith requested the court to give 17 prayers for instructions plus 4 additional prayers, covering seven pages in ......
  • State v. Shipman, No. 547.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 6, 1932
    ...out if the state fails to establish the conspiracy." State v. Brady, 107 N. C. 822, 12 S. E. 325; Hamilton v. R. R, 200 N. C. at page 556, 158 S. E. 75. We do not think defendants can complain. There was evidence aliunde to establish prima facie, or proper to be laid before the jury, as to ......
  • Cleveland Constr. Inc. v. Ellis–don Constr. Inc., No. COA10–525.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • April 5, 2011
    ...that “[l]ong-established customs and usages are to be judicially recognized as part of the law[,]” Hamilton v. R. R., 200 N.C. 543, 557, 158 S.E. 75, 83 (1931), where, as here, “no evidence [i]s introduced as to usage or custom” and the fact-finder “did not, nor was it requested to, take ju......
  • Request a trial to view additional results
18 cases
  • Wachovia Bank &. Trust Co v. Southern Ry. Co, No. 751.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 22, 1936
    ...48 L.Ed. 1057.' [2 Roberts Federal Liabilities and Carriers (2d Ed.) (1929)] 811, pp. 1558, 1559." Hamilton v. R. R., 200 N.C. 543, 555, 158 S.E. 75, 82. In the religious realm, the duty is thus stated: "We have left undone those things, which we ought to have done; And we have done those t......
  • State v. Smith, No. 652
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 30, 1953
    ...State v. Robinson, 124 N.C. 801, 32 S.E. 494; State v. Raper, 203 N.C. 489, 166 S.E. 314; Hamilton v. Southern R. R. Co., 200 N.C. 543, 158 S.E. 75. Assignments of Errors to the Smith requested the court to give 17 prayers for instructions plus 4 additional prayers, covering seven pages in ......
  • State v. Shipman, No. 547.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 6, 1932
    ...out if the state fails to establish the conspiracy." State v. Brady, 107 N. C. 822, 12 S. E. 325; Hamilton v. R. R, 200 N. C. at page 556, 158 S. E. 75. We do not think defendants can complain. There was evidence aliunde to establish prima facie, or proper to be laid before the jury, as to ......
  • Cleveland Constr. Inc. v. Ellis–don Constr. Inc., No. COA10–525.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • April 5, 2011
    ...that “[l]ong-established customs and usages are to be judicially recognized as part of the law[,]” Hamilton v. R. R., 200 N.C. 543, 557, 158 S.E. 75, 83 (1931), where, as here, “no evidence [i]s introduced as to usage or custom” and the fact-finder “did not, nor was it requested to, take ju......
  • Request a trial to view additional results

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