Harrill v. South Carolina & G.E.R. Co.
| Decision Date | 27 May 1904 |
| Citation | 47 S.E. 730,135 N.C. 601 |
| Parties | HARRILL v. SOUTH CAROLINA & G. E. R. CO. OF NORTH CAROLINA. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Rutherford County; B. F. Long, Judge.
Action by R. N. Harrill, as administrator of the estate of Jake Metcalf, deceased, against the South Carolina & Georgia Extension Railroad Company of North Carolina. From a judgment for plaintiff, defendant appeals. Affirmed.
See 44 S.E. 109.
The court charged that contributory negligence does not apply to the use by an employé of ways known by the company to be defective, and which the employé is required to use and can use in but one way, but that an employé cannot hold his employer liable for his wrongful acts, done contrary to his duty, so that culpable negligence contributing to the injury would bar recovery. It was further stated that if the contributive fault was of a negative character, and would not have existed but for the primary wrong, it is not to be charged to the injured person, but to the original wrongdoer. On the specific facts, the court charged that if it was pointed out to deceased that the trestle was dangerous, and it was in fact apparently so, and deceased went on it without exercising ordinary prudence, he could not recover, but that if he was told to examine it, and did so, without discovering that it was dangerous, and believed that he could go over it with usual safety, and violated no rule of the company, he could recover. Held not erroneous.
P. J Sinclair, G. W. S. Hart, and N.W. Hardin, for appellant.
E. J Justice and Busbee & Busbee, for appellee.
The plaintiff alleged that his intestate, Jake Metcalf, was on and before April 20, 1901, employed by the defendant as a locomotive engineer, and was on said day engaged in running an engine carrying cars from Blacksburg, S. C., to Marion, N. C.; that while so engaged he was killed by the falling of a bridge or trestle, being a part of defendant's track over Buffalo creek, in South Carolina; that said trestle was on said day, by reason of defendant's negligence, in a defective and dangerous condition, and, by reason thereof, gave way and fell, causing the death of his intestate. Defendant denied that plaintiff's intestate was, on the day named, employed by or engaged for the defendant in pulling a train from the points named in the complaint. The defendant also denied the allegation of negligence, and averred that plaintiff's intestate assumed the risk of crossing the trestle, and was guilty of contributory negligence. At the conclusion of the plaintiff's testimony, defendant moved for judgment of nonsuit, for that (1) the plaintiff has failed to show that the defendant company, the South Carolina & Georgia Extension Railroad Company of North Carolina, ran its train, or built or is required in law to maintain the trestle over Buffalo creek, in South Carolina, or that the plaintiff's intestate was employed by defendant company; (2) that there was no evidence of negligence on the part of defendant; (3) that plaintiff's evidence demonstrated that his intestate was not without fault, and that he came to his death by his own negligence. The motion was refused, and was renewed upon the same grounds at the conclusion of the entire testimony, and again refused, and defendant excepted. The court submitted the following issues to the jury:
The controversy in regard to the relation which the plaintiff's intestate bore to the defendant company is presented by the first ground assigned for the motion to nonsuit, and certain special prayers for instruction asked by defendant. An examination and settlement of this question lies at the threshold of the case. If the plaintiff has introduced no evidence to sustain the allegation that his intestate was in the employment of the defendant company, and that by the terms of such employment he was required to run his engine over and across Buffalo creek on the day he was killed, the motion for nonsuit should have been allowed. The testimony in regard to the status of the defendant, and its relation to the South Carolina corporation owning the railroad to the North Carolina line, is certainly unsatisfactory. To correctly understand the status of the defendant corporation, it becomes necessary to state as concisely as possible its history and relation to certain other corporations. The General Assembly of this state, at its session of 1887 (page 143, c. 77), consolidated the Charleston, Cincinnati & Chicago Railroad Company, a South Carolina corporation, with two North Carolina corporations creating the Charleston, Cincinnati & Chicago Railway Company, a North Carolina as well as a South Carolina corporation, operating a railroad from Marion, N. C., to Blacksburg, S. C. This railroad, with all of its property, rights, franchises, etc., in both states, was sold under foreclosure proceedings in the Circuit Court of the United States, and was by the purchaser incorporated under the corporate name of the Ohio River & Charleston Ry. Co. Bradley v. Railroad, 119 N.C. 918, appendix. This last-named corporation executed certain mortgages, which were foreclosed pursuant to a decree of the Circuit Court of the United States for the Western District of North Carolina, and the property, rights, franchises, etc., purchased by Samuel Hunt and others. Pursuant to sections 697, 698, and 2005 of the Code, the purchasers formed a new corporation under the name of the South Carolina & Georgia Extension Railroad Company of North Carolina. At the session of the General Assembly of 1899 (Pub. Laws 1899, p. 129, c. 35) the Legislature incorporated said company under said name; conferring upon it all of the rights, powers, privileges, franchises, and immunities that at any time belonged to the Charleston, Cincinnati & Chicago Railroad Company, or to the Ohio & Charleston Railway Company of North Carolina, or to the Ohio River & Charleston Railroad Company or to any or all of their predecessors. The said corporation was authorized to operate and maintain a railroad from the said line, on the county line of Cleveland county, to the town of Marion, in the state of North Carolina, and was authorized and empowered to assign or lease its franchises, rights, and property, and to consolidate with any other corporation organized under the laws of this or any other state. The manner in which said consolidation shall be made, and the evidence thereof, is fully set forth in section 8 of chapter 35 of said act, which was ratified January 31, 1899. On the 18th of August, 1898, the South Carolina & Georgia Extension Railroad Company of South Carolina was chartered, which charter was confirmed by the Legislature of South Carolina on the 1st day of March, 1899. The same persons, except P.J. Sinclair, are named as directors of the South Carolina corporation. The Constitution of South Carolina forbids any foreign corporation to do business there without the consent of the Legislature of that state. There was no evidence that said corporation had consolidated in accordance with the provisions of section 8, c. 35, p. 131, of the Laws of 1899. There was no other line of road running from Marion, N. C., through Rutherford and Cleveland county, to the South Carolina line, than the one which extends to South Carolina and across to Blacksburg. It appeared in evidence that the intestate was employed by the South Carolina & Georgia Extension Railway Company. This was shown by vouchers and checks issued to the said intestate, drawn upon the National Union Bank, Rock Hill, S. C., the National Bank of Gaffney, Gaffney, S. C., Merchants' & Planters' Bank, Gaffney, S. C., or B. Blanton & Co., Bankers, Shelby, N.C. There was also evidence tending to show that the run of said intestate was from Blacksburg, S. C., to Marion, N. C., and return; that he had been making this run for about two years; that he was working for the same company during this time. His widow testified that he was working on the road which operated trains in North Carolina from Marion along the line of what is known as the "Three C Road"; that he had the rulebook and time-tables issued by the South Carolina & Georgia Extension Railroad Company. It was in evidence on the part of the defendant that Thomas A. Smith was a section master, having under his charge a portion of the road running from Blacksburg, S. C., to Earle, N.C. It was further in evidence on the part of said witness that he had been section master of said road eight or ten years; that three miles of his section was in North Carolina, and three in South Carolina, including Buffalo creek; that it was under one management, and that he was employed by one company; that his employment covered the time of death of plaintiff's intestate. Another witness for the defendant testified that he was employed on said road, and did not know he was working for but one company. It was further in evidence by W. M. Wilkie on the 20th day of April, 1901, he was employed in repairing cars in the shop at Blacksburg for the South Carolina & Georgia Extension Railroad Company; that he had worked on trestles from Blacksburg, S. C., to Brushy Creek, N. C.; that Mr. Tripp was superintendent, Mr. Maxwell was supervisor of the track, and Mr. Nutting was supervisor of the bridges and...
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