Horton v. Seabd. Air Line Ry

• Decision Date: 22 November 1911
• Citation: 72 S.E. 958,157 N.C. 146
• Court: North Carolina Supreme Court
• Parties: HORTON v. SEABOARD AIR LINE RY

72 S.E. 958

157 N.C. 146

HORTON

v.SEABOARD AIR LINE RY

Supreme Court of North Carolina.

Nov. 22, 1911.

1. Commerce (§ 27^*)—Injuries to Servant— Railroads—Employer's Liability Act— Interstate Commerce.

Where a railroad engineer was injured while hauling a train containing cars engaged in both interstate and intrastate commeree.he was himself engaged in interstate commerce, and entitled to sue under the employer's liability act (Act Cong. April 22, 1908. c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909 p. 1171.]).

[Ed. Note.—For other cases, see Commerce, Dec. Dig. § 27.*]

2. Master and Servant (§ 228*)—Injuries to Servant—Railroads—Defective Appliances—Negligence.

Where a railroad engineer was furnished with an engine equipped with a water glass without any shield or guard, and on his return from his first trip applied to his foreman for a shield or guard, and was informed that defendant had none, and plaintiff was injured by the explosion thereof on another trip, defendant was negligent, and any contributory negligence of plaintiff was no defense under Act Cong. April 22, 1908. c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1909, p. 1171).

[Ed Note.—For other cases, see Master and Servant, Dec. Dig. § 228.*]

3. Master and Servant (§ 289*)—Injuries to Servant—Contributory Negligence-Nonsuit—Employer's Liability.

Under employer's liability act (Act Cong. April 22, 1908, c. 149, 35 Stat. 05 [U. S. Comp. St. Supp. 1909, p. 1171]), plaintiff, a railroad employé engaged in interstate commerce, can elect to sue under such statute in the state court. The statute forbids a nonsuit where there is any evidence of negligence on the part of defendant. Held, that where plaintiff, engaged in interstate commerce, elects to sue in the state court under such statute, the court cannot direct a nonsuit on the ground of contributory negligence, though under Revisal 1905, § 483, defendant is entitled to set up in his answer contributory negligence as a defense.

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 289.*]

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

Action by James F. Horton against the Seaboard Air Line Railway. Judgment for defendant, and plaintiff appeals. Reversed.

Douglass, Lyon & Douglass and Holding & Snow, for appellant.

Murray Allen, for appellee.

CLARK, C. J. [1] This is an action to recover damages for injury to one of plaintiff's eyes caused by the bursting of a defective water glass on a locomotive engine which plaintiff, as engineer, was operating on defendant's railroad. Plaintiff alleges that he was injured while he and the defendant were engaged in interstate commerce, and brought this action under the federal employer's liability act (Act Cong. April 22. 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p. 1171]). The parts of said act material to this action are as follows:

"Section 1. Every common carrier by railroad engaging in commerce between any of the several states shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce for such injury, resulting in whole or in part from the negligence of any of the officers, agents or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its engines, appliances, machinery, " etc.

"Sec. 3. In all actions hereafter brought against any such common carrier by railroad, under or by virtue of any of the provisions of this act, to recover damages for personal injuries to an employe, the fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé."

"Sec. 5. Any contract, rule, regulation or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall to that extent be void."

The plaintiff testified that he had in the train cars of several railroads located beyond the state boundary and some of them were lumber cars destined for Richmond, Suffolk, Portsmouth, Norfolk, and Franklin, Va., and Pittsburg, Pa. In Railroad v. Johnson, 178 Fed. 643, 102 C. C. A. 89, it was held that an employs of a railroad company charged with the duty of seeing to the coupling of cars some of which were being used in interstate commerce was employed in interstate commerce within the provisions of the employer's liability act. The same was held as to a section hand working on the track of a railroad over which both interstate and intrastate traffic is moved. Zikos v. Railroad (C. C.) 179 Fed. 893.

In a very recent case decided by the United States Supreme Court October 30, 1911

(Railroad v. United States, 222 U. S.——, 32

Sup. Ct. 2, 56 L. Ed. ——), it was held that

when the defendant railroad company was operating a railroad which was "a part of a through highway over which traffic was continually being moved from one state to another, " hauled over a part of its road five cars, the couplers of which were defective, two of the cars being used at the time in moving interstate traffic, and the other three in moving intrastate traffic. Though the use of the last three was not in connection with any car or cars used in interstate commerce, yet the federal liability statute applied to said three cars, and the defendant was liable to the penalty for not having automatic couplers thereon because the act applies "on any railroad engaged in interstate commerce." Applying that decision to this case, it is very certain that for a stronger reason the plaintiff was entitled to bring this action under the federal statute. He was at the time engaged in hauling cars which were being used in interstate commerce.

The engine on which the plaintiff was placed by the defendant was equipped with a ...