Horton v. Seaboard Air Line Ry. Co.

• Decision Date: 08 May 1918
• Docket Number: 410.
• Citation: 95 S.E. 883,175 N.C. 472
• Parties: HORTON v. SEABOARD AIR LINE RY. CO.
• Court: North Carolina Supreme Court

95 S.E. 883

175 N.C. 472

HORTON v. SEABOARD AIR LINE RY. CO.

No. 410.

Supreme Court of North Carolina

May 8, 1918

Appeal from Superior Court, Union County; Long, Judge.

Action by Mrs. Lessie Horton, administratrix, against the Seaboard Air Line Railway Company. From judgment for plaintiff defendant appeals. No error.

Assumed risk is founded upon knowledge by employee of hazards to be encountered and his consent to take chance of injury therefrom.

This is an action of damages for wrongful death under the federal Employers' Liability Act. The plaintiff's intestate was killed at 4 a. m. February 9, 1917, in a wreck between Monroe and Wingate, about a mile east of Monroe. Said intestate was conductor on the west-bound freight train and was proceeding towards Monroe. He had placed a caboose and tank car in front of the engine, and was pushing them and pulling 36 freight cars, when 21 heavily loaded freight cars which had gotten loose at Monroe, rolled down the grade striking his train, killing the plaintiff's intestate. The following issues were submitted:

(1) Was the plaintiff's intestate killed by the negligence of f the defendant, as alleged in the complaint? Answer Yes.

(2) Did the plaintiff's intestate, by his own negligence, contribute to his death, as alleged in the answer? Answer: Yes.

(3) Did the plaintiff's intestate, by his own conduct, assume the risk of being killed by the collision between his train and the runaway cars, as alleged in the answer? Answer: No.

(4) What damages, if any, is the plaintiff entitled to recover for herself as the widow of her intestate? Answer: $10,000.

(5) What damages, if any, is the plaintiff entitled to recover for the infant Gus Horton? Answer: $5,000.

(6) What damages, if any, is the plaintiff entitled to recover for the infant Annie Horton? Answer: $5,000."

To which the jury responded as above set out. Judgment was rendered upon the verdict, from which defendant appealed.

Walker and Brown, JJ., dissenting.

Cansler & Cansler, of Charlotte, Armfield & Vann, of Monroe, and John M. Robinson, of Charlotte, for appellant.

Stack & Parker, of Monroe, for appellee.

CLARK C.J.

The defendant does not discuss in his brief exceptions 3, 5, 6, 7, 11, and 12, which therefore, under rule 34 (81 S.E. xii), are deemed abandoned.

The plaintiff alleged that the death of her intestate was caused by the negligence of the defendant: (1) In allowing loaded freight cars to run down its main line without any one in charge to exercise control over them. (2) In making up a train upon its main line upon a steep grade, and in allowing loaded freight cars to stand upon the grade without brakes being properly applied. (3) In violently bumping cars left upon the grade. (4) In equipping the cars, which broke loose, with defective couplers. There was evidence tending to support these charges of negligence, and the court properly instructed the jury in regard thereto.

The fourth assignment of error is that the court charged as follows:

"If the jury find from the evidence that the wreck which caused the death of the plaintiff's intestate was solely and proximately caused by the negligence of defendant's servants in not properly applying brakes on cars standing on its main line on a grade, the jury are instructed that the risk of this negligence was not assumed by the deceased in allowing the caboose in which he was riding to be pushed by the engine, even if the deceased would have escaped injury if the caboose had been behind the engine instead of in front of it."

In this we find no error. The doctrine of assumption of risk is that an employé assumes the risk of accidents and injuries incident to the business properly operated. He does not assume the risk caused by the negligence of the company in not furnishing proper appliances or in any other respect. In this case the jury have found that the death of the intestate was due to the negligence of the defendant in the particulars above set forth. If the plaintiff in any respect contributed thereto, by putting the caboose and tank car in front of the engine, this was not assumption of risk, but was contributory negligence; and though it is not clearly apparent that this action contributed to the collision with the runaway cars, the jury have so found, and neither party has appealed on that ground, and the jury have apportioned the damages under the federal statute. Such contributory negligence was the act of the intestate, and not a risk of the business which he assumed. In Railroad v. Campbell, 241 U.S. 497, 36 S.Ct. 683, 60 L.Ed. 1125, the court said:

"It is most earnestly insisted that the findings established that Campbell was not in the course of his employment when he was injured, and consequently that judgment could not properly be entered in his favor upon the cause of action established by the general verdict. This invokes the doctrine that where an employé voluntarily and without necessity growing out of his work abandons the employment and steps entirely aside from the line of his duty, he suspends the relation of employer and employé, and puts himself in the attitude of a stranger or a licensee. The cases cited are those where an employé intentionally has gone outside of the scope of his employment, or departed from the place of duty. The present case is not of that character. * * * We are not aware that in any case it has been seriously contended that, because an engineer violated the orders, he went outside of the scope of his employment."

Conceding that the conduct of the deceased was in violation of state law because the intestate, who was a conductor, was running the train without the headlight displayed as required by state law, he did not thereby become a mere trespasser, to whom the defendant owed no duty save to refrain from willful injury. His conduct at most, as between him and his employer, was contributory negligence, which the jury have found. In the case just cited the United States Supreme Court held that, though Campbell was guilty of a criminal offense in violation of state law:

"His right to recover against his employer depends upon the acts of Congress, to which all state legislation affecting the subject-matter must yield"--citing Railroad v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874.

The deceased was not a trespasser, but was an employé engaged at the time of his death in the discharge of his duty, and if guilty of negligence in the make-up of his train the damages have been diminished on account of that negligence by the provision of the federal Employers' Liability Act that the negligence of an employé should not defeat but merely diminish the recovery. There is a vital difference between contributory negligence and assumption of risk, which is thus stated (1 Labatt on Master and Servant, §§ 305 and 306) as follows:

"Assumed risk is founded upon the knowledge of the employé, either actual or constructive, of the risks to be encountered, and his consent to take the chance of injury therefrom. Contributory negligence implies misconduct, the doing of an imprudent act by the injured party, or his dereliction in failing to take proper precaution for his personal safety. The doctrine of assumed risk is founded upon contract, while contributory negligence is solely matter of conduct."

This distinction has often been approved by the United States Supreme Court in cases under the Employers' Liability Act. Railroad v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Railroad v. Wright, 235 U.S. 376, 35 S.Ct. 130, 59 L.Ed. 277. The distinction is well stated in Richey, Federal Employers' Liability Act (2d Ed.) 169, as follows:

"Though an employé is said to assume the risk of the consequences resulting from a violation of rules, this is properly contributory negligence. And an employé in view of severe weather conditions is guilty of contributory negligence and does not assume the risk when he fails to protect the rear of his train by proper signals, though warned by the following engineer that it was impossible to see the block signals and told to do a good job of 'flagging.' "

Exceptions 8 and 9 are to instructions as follows:

"(8) If you answer this third issue [assumption of risk] 'yes,' the plaintiff cannot recover at all.

(9) In this connection I will say to you that 'assumed risk,' is founded upon the knowledge of the employé of the hazards to be encountered and his consent to take the chance of injury therefrom."

We find no error in these instructions which require no discussion.

The intestate left a wife and two children, and exceptions 1 and 2 are to the court submitting an issue as to damages sustained by each of the three beneficiaries, for whom the action was brought. At the time of his death the deceased was engaged in discharging the duties of a freight conductor on one of the defendant's freight trains engaged in interstate commerce, as is admitted in the defendant's brief, and this action was brought under the federal Employers' Liability Act. There is a radical difference between the wrongful death statute of North Carolina (Revisal, § 59) and the provision of the federal statute under which this action is brought. Revisal, § 59, provides that the action shall be brought by the personal representative of the decedent:

"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."

And Revisal, § 60, provides:

"The plaintiff in such action may recover such damages as are fair and just compensation for the pecuniary injury resulting from such

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