Hinnant v. Tide Water Power Co.

• Citation: 121 S.E. 540,187 N.C. 288
• Decision Date: 27 February 1924
• Docket Number: 281.
• Parties: HINNANT v. TIDE WATER POWER CO.
• Court: North Carolina Supreme Court

121 S.E. 540

187 N.C. 288

HINNANT v. TIDE WATER POWER CO.

No. 281.

Supreme Court of North Carolina

February 27, 1924

Appeal from Superior Court, New Hanover County; Sinclair, Judge.

Action by J. S. R. Hinnant, administrator of W. T. Hinnant, against the Tide Water Power Company. Judgment for plaintiff, and defendant excepts and appeals. Affirmed.

An instruction, in an action for the death of a motorman killed in a head-on collision, that, where the death of a railroad employee was the result of a head-on collision in the daytime, the law presumed that it was caused by negligence of the railroad, which presumption, however, was rebuttable held to correctly state the law and not prejudicial in view of an instruction given at defendant's request.

This is a civil action brought by J. S. R. Hinnant, administrator of W. T. Hinnant, for damages against the Tide Water Power Company. W. T. Hinnant was a mortorman and employed by the defendant corporation that operated an electric suburban line of railroads from the city of Wilmington to Wrightsville Beach, N.C. He was a motorman on a passenger train running between Wilmington and Wrightsville Beach. The contention of the plaintiff is: That his intestate was the motorman on a passenger train which was run and operated upon a regular schedule time promulgated by defendant company, and, in the absence of special orders to the contrary, the passenger trains were under the rules of the company given the right of way over all other cars on the line. That at the time plaintiff's intestate was killed, on August 25, 1920, no special order had been issued granting to any other train the right of way over the train plaintiff's intestate was operating as motorman. That it was the duty of defendant to keep its track clear so that the train plaintiff's intestate was operating would have an unobstructed way and be able to make the schedule required by the rules of the defendant. That all other trains were required to clear the track for at least five minutes ahead of the schedule upon which plaintiff's intestate was running. That the defendant promulgated certain rules in regard to operating its trains. That on August 25, 1920, the defendant negligently and carelessly and in utter disregard of the rights of plaintiff's intestate and his safety, and in violation of the rules of the company, ran or caused to be run a freight or baggage car out and upon the main line upon the schedule time of the train which the plaintiff's intestate was running. That it was run at a high rate of speed, and in head-on collision with the plaintiff's intestate's train on a long high trestle, in which collision plaintiff's intestate was killed. That defendant negligently and carelessly employed as motorman on the freight or baggage car, a man whom it knew, or should have known, was incompetent and unfit to be trusted in such a position, and at the time the baggage car was run out on the main line and at the time of the collision, it was being operated by an incompetent colored man, a coemployee of the motorman. That the motorman and the colored employee negligently failed to keep a proper lookout. If a proper lookout had been kept, they would have seen plaintiff's intestate's train coming upon its schedule time and could have stopped the baggage car, reversed it, and gotten out of the way and given timely signals to plaintiff's intestate in time to have prevented the collision and killing of plaintiff's intestate. That some of defendant's other employees on the train run by plaintiff's intestate did negligently and carelessly violate the rules of the company by coming out on the platform when plaintiff's intestate was performing his duty and indulge in conduct which distracted his attention, and that such acts were one of the contributing proximate causes of plaintiff's intestate's being killed.

The defendant contends that at the time of the collision plaintiff's intestate was not running on regular schedule time, but was proceeding from Wilmington to Wrightsville Beach for the purpose of taking up his schedule or regular run, and his train was not entitled to the rights and privileges of a regular passenger train running on regular time, as it was the duty of such a train to get out of the way of regular trains.

The defendant admits that rules were promulgated, and charges the plaintiff's intestate with violating some of them, and alleges that it was as much plaintiff's intestate's duty to observe these rules as it was the duty of any other employee, and charges that the violation by plaintiff's intestate of the rules was the proximate cause of the collision and injury to him.

The defendant denies that it employed an unfit and incompetent motorman on the baggage car.

"The defendant admits that another employee went out onto the platform and he and plaintiff's intestate engaged in conversation, contrary to the rules of the company. The defendant says that the rules of the company, with which the plaintiff's intestate was perfectly familiar, made the motorman responsible for the safe operation of the car, and his allowing any one else to engage him in conversation so as to distract his attention was gross negligence and the proximate cause of the injury."

The defendant denies all liability and submits that the collision and accident referred to in the complaint was due to the negligence of the plaintiff's intestate.

For a further defense, the defendant alleges:

"That the motorman had been in the employ of the defendant company for many years and was perfectly familiar with the rules and regulations of the defendant company; that he had run on this route and on passenger trains for years; that he knew that the defendant operated a freight car which in the morning took the garbage and other refuse stuff from the beach for the purpose of cleaning up, and that said car was frequently partly unloaded on the fill in the sound between Harbor Island and Wrightsville Sound; that he knew that this car left the beach for the mainland somewhere between 6 and 6:30, and he usually met it at Wrightsville and had not done so; that he was not running on schedule time, but was taking the train to Wrightsville Beach to pick up his schedule, and was compelled to get out of the way of trains running on schedule time, and to that end had discretion as to the manner of running; that he came to Wrightsville and the freight car was coming from Harbor Island, and it was much more than halfway across the trestle, and the motorman of the freight car blew his signal many times, but plaintiff's intestate, instead of being attentive to his duty and looking down the track, as it was his plain duty to do when he could have seen the freight train approaching as it was a perfectly clear day and in broad daylight was engaged in laughing and talking with some one else and this inattention, disobedience of rules, and negligence on the part of the plaintiff's intestate was the sole proximate cause of the accident or contributed proximately to it."

The issues submitted to the jury, and their answers, are as follows:

"(1) Was the plaintiff's intestate killed by the negligence of the defendant, Tide Water Power Company, as alleged in the complaint? Answer: Yes.

(2) Was the plaintiff's intestate, W. T. Hinnant, guilty of contributory negligence, as alleged in the defendant's answer? Answer: Yes.

(3) What damages, if any, is the plaintiff entitled to recover? Answer: $12,000."

The court below rendered judgment on the verdict for plaintiff, and defendant excepted, assigned error, and appealed to this court.

There are numerous exceptions and assignments of error in the record. We will consider the ones material to this case, and other pertinent facts and contentions, in the opinion.

Rountree & Carr, of Wilmington, for appellant.

E. K. Bryan, of Wilmington, for appellee.

CLARKSON J.

The statutory law in reference to actions of this character is as follows:

C. S. § 160: "When the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured party had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their executors, administrators collectors or successors, shall be liable to an action for damages, to be brought within one year after such death, by the executor, administrator or collector of the decedent; and this notwithstanding the death, and although the wrongful act, neglect or default, causing the death, amounts in law to a felony. The amount recovered in such action is not liable to be applied as assets, in the payment of debts or legacies, but shall be disposed of as provided in this chapter for the distribution of personal property in case of intestacy."

C. S. § 3465: "Any servant or employee of any railroad company operating in this state who shall suffer injury to his person, or the personal representative of any such servant or employee who shall have suffered death in the course of his services or employment with such company, by the negligence, carelessness or incompetence of any other servant, employee or agent of the company, or by any defect in the machinery, ways or appliances of the company, shall be entitled to maintain an action against such company. Any contract or agreement, expressed or implied, made by any employee of such company to waive the benefit of this section shall be null and void."

C. S. § 3466: "Every common carrier by railroad shall be liable in damages to any person suffering injury while he is employed by such carrier, or in the case of the death of such employee, to his or her personal representative, for such injury or death resulting in whole or in part from...