Hatnes v. North Carolina R. Co

• Decision Date: 27 November 1906
• Citation: 55 S.E. 516,143 N.C. 154
• Parties: HATNES . v. NORTH CAROLINA R. CO.
• Court: North Carolina Supreme Court

55 S.E. 516

143 N.C. 154

HATNES .

v.NORTH CAROLINA R. CO.

Supreme Court of North Carolina.

Nov. 27, 1906.

1. Master and Servant—Actions—Admissibility of Evidence—Contributory Negligence.

In an action against a railroad for the death of a locomotive engineer whose train ran onto a siding and collided with cars standing thereon, by way of meeting the defense of contributory negligence, based on an alleged violation of a rule requiring decedent, when approaching the switch, in the absence of a light at the switch, to slow down until he could control his engine, plaintiff sought to show that the rule had been so habitually violated as to nullify it, and that such violation was essential to the operation of the trains in accordance with prescribed schedules.. Held that, as sustaining such contention, it was proper to admit evidence showing the length of decedent's run, the schedule prescribed, the number of switch lights, their usual condition, and the length of time which would be consumed in conforming to the rule to stop.

2. Same—Questions for Jury.

In an action against a railroad for the death of a locomotive engineer, whose train ran upon a siding and collided with cars standing thereon, held, under the evidence, a question for the jury whether a rule, requiring a locomotive engineer, when approaching a switch, in the absence of a light at the switch, to slow down and bring the engine under control, had been nullified by habitual violations and by the promulgation of schedules rendering it impossible to observe such a rule.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1039.]

3. Same—Contributory Negligence—Violation of Rules.

The violation by a servant of a known rule laid down by the master for the protection and safety of the servant does not bar a recovery where the rule has been violated so openly and frequently and for such a length of time that the master could, by the exercise of ordinary care, have ascertained its nonobservance.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 763.]

Appeal from Superior Court, Mecklenburg County; Bryan, Judge.

Action by Bettie W. Haynes, as executrix, against the North Carolina Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This was an action brought by the plaintiff executrix for the recovery of damages sustained by reason of the death of her testator on account of the alleged negligence of defendant's lessee. Plaintiff's testator was, on the night of June 9, 1904, in the employment of Southern Railway Company, the lessee of defendant, in the capacity of locomotive engineer and, in the discharge of his duty, was in charge of the engine, attached to, and forming a part of, passenger train No. 40, operated by said lessee, which ran from Greenville, S. C, to Charlotte, N. C, and thence, over the main line of defendant company, through the city of Salisbury to Spencer, N. C. On the said night, June 9, 1904, while making said run at about the hour of 12 o'clock, said engine and a portion of the cars left said track and ran onto a side track, in the shifting yard of defendant, In the city of Salisbury, known as the "Icehouse Siding, " where it collided with two box cars standing on said siding, inflicting injuries upon said testator, causing his death. Plaintiff alleged that the said engine left the main track and ran on the siding and into the box cars by reason of the negligence of defendant's lessee, assigning three acts of negligence: (1) In failing to furnish a clear track and a safe roadbed upon which to run the engine and cars. (2) In failing to keep the switch at the siding in such repair, so adjusted, securely set, and locked as to keep disconnected said siding from the rail of the main track. (3) In failing to keep the switch rail of said siding, connecting the same to the rail of the main track, in such repair and so adjusted as to permit the engine to run over the said main track without running off the same and onto the siding. Defendant denied that it was negligent in either of the respects specified, and for further defense alleged that plaintiff's testator came to his death by his own negligence, specifying particularly the acts contributing thereto. (1) That he was running his engine, at the time it left the track and collided with the box cars on the siding, through the city of Salisbury at a rate of speed in violation of the ordinance of the said city. (2) That he was running said engine at said time at a rate of speed in violation of the rules of the company, which were well known to him, and which required him to run his engine at such rate of speed that he would have it under his control, whereas he was running at a rapid and reckless rate of speed. (3) That at said time he was violating a rule of the company which required that whenever a danger signal was shown on the line of said road, the engineer in charge of said train should stop and examine the cause thereof. That at the said time there was shown a danger signal at said switch or siding which was plainly visible for a distance sufficient to enable him to stop the train. (4) That at said time, he was violating a rule of the company which required him to stop his train, if the signal which was provided for that purpose did not show the track clear. That by each of the said acts of negligence he contributed to his injury and death. Plaintiff replied to the new matter set forth in the answer alleged to constitute contributory negligence on the part of her testator: (1) That, if her testator was running said engine through the city of Salisbury in violation of the ordinances of said city, he was obeying the orders of the agents and officers of defendant's lessee, with their full knowledge and consent. That It was frequently necessary to run said trains through said city at a rate of speed prohibited by said ordinances in order to maintain the schedules promulgated and enforced by said company. That her testator was not at said time runninghis engine in violation of said ordinances. That, if he was running said engine in violation of the rules of defendant's lessee, he was doing so by its direction and in accordance with the uniform habit and custom of the engineers of defendant's lessees to run the trains at the place of the said siding and switch at as high rate of speed as her testator was running said train at the time of the collision. That such speed was necessary to enable her testator and other engineers to maintain the schedules promulgated by said company. That the rules referred to In the answer were and had been been abrogated and rendered nugatory by the officers of the defendant's lessees, and that defendant was estopped from setting up or relying on said rules in this action, etc. That, if her testator attempted to run said train by the said switch and siding when the signal light was absent, his conduct in so doing was in conformity with the uniform custom and habit of her testator and all other engineers of said lessee company engaged in running over this line of railway from Greenville to Spencer, which custom and habit was for a long time known to. and acquiesced in by, the officers of said company, and was necessary to maintain the schedules of said company. Upon the foregoing pleadings, his honor submitted to the jury the following Issues: "(1) Was the plaintiff's testator killed by the negligence of the Southern Railway Company, as alleged? (2) Was the plaintiff's testator guilty of contributory negligence, as alleged? (3) What damages was plaintiff entitled to recover?" There was a verdict for the plaintiff and judgment thereupon, from which defendant appealed. The testimony pertinent to the exceptions is set forth in the opinion.

W. B. Rodman and L. C. Caldwell, for appellant.

Burwell & Cansler, for appellee.

CONNOR, J. (after stating the case). The well-prepared briefs and arguments in this appeal present the merits clearly, and in the light of the pleadings the decision turns upon two questions. (1) Has the defendant, as a matter of law, successfully met the presumption of negligence raised by the fact that the switch was misplaced by reason whereof the engine attached to train No. 40 collided with the box cars on the siding? (2) Was there any competent evidence tending to show that the rule introduced by defendant governing plaintiff's testator in the management of the engine was, by reason of its habitual violation, known to defendant's lessee, or by the prescribed schedules, abrogated?

It appearing that the engine, while approaching Salisbury, left the main track at the Icehouse Siding and went upon the side track, colliding with the box cars, the presumption arises that the switch was defective either in its construction, was out of repair, or that, by some means, It was set to the siding instead of the rail of the main track. In either case the track was not clear, in the sense of being safe. We find no evidence that the switch was defectively constructed or was not in proper repair, but there is evidence, practically uncontradicted, that the switch was set to the siding, hence the engine, by the law of its construction and operation, could not do otherwise than, by following the rail, go upon the siding. This was inevitable. It was the duty of the defendant's lessee to use reasonable care to provide and maintain a safe switch, and to keep it properly adjusted. The fact that It was not so adjusted and set to the main track, where, according to the regular schedule, train No. 40, going north, was expected to pass over it, raises a presumption that defendant's agents or servants, intrusted with that duty were negligent, and casts upon defendant's lessee the duty of "going forward" with proof to the contrary. This is conceded. At the request of defendant his honor, upon this point, instructed the jury: "The defendant is not an insurer of the life of its employes; the...