Hudson v. Seabd. Air Dine Ry. Co

• Decision Date: 20 November 1918
• Docket Number: (No. 423.)
• Citation: 97 S.E. 388
• Court: North Carolina Supreme Court
• Parties: HUDSON. v. SEABOARD AIR DINE RY. CO.

97 S.E. 388

HUDSON.

v.SEABOARD AIR DINE RY. CO.

(No. 423.)

Supreme Court of North Carolina.

Nov. 20, 1918.

Brown and Walker, JJ., dissenting.

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

Action by Joe Hudson, administrator of Jas. Hudson, deceased, and others, against the Seaboard Air Line Railway Company. Judgment for plaintiff, and defendant appeals. No error.

This is an action by Joe Hudson, administrator of Jas. Hudson, deceased, to recover damages for the benefit of the minor children of his intestate under the federal Employers' Liability Act on account of the negligent killing of said intestate by the defendant railway company. Plaintiff's intestate, James Hudson, was a station porter of defendant at Monroe, and as such it was his duty to handle the mails and to transfer same when necessary from one train to another standing within the yard. He was engaged in this duty when he was struck and killed by an engine of defendant, which was backing in a crowded yard between two passenger trains and through a dense cloud of steam, without giving proper signals and without having a trainman on the rear to keep a lookout, as required by the rules of the company.

The tracks of defendant in the Monroe yard lie east and west, and all are north of the station. On the morning in question, train No. 5 came in on track No. 1, or the track nearest the station. Train No. 29 was standing on track No. 3, the mail car of No. 29 being just a little to the west of the mail car of No. 5. The "fresh" engine to carry No. 5 out was standing on track No. 2 just "in the clear." When No. 5 came in, the "old" engine was uncoupled and run down the main line; that is, west of where tracks Nos. 1 and 2 join. Then the fresh engine also ran down to a point west of the junction of tracks 1 and 2. Then both engines began backing towards the east, the "fresh" engine on track No. 1 to couple up with train No. 5, the "old" engine on track No. 2. As the engines came back, the "fresh" engine was blowing clouds of steam out of its cylinder cocks. The old engine was a little to the west of the "fresh" engine, the rear end of the tender of the old engine being about midway of the "fresh" engine; and as a result of the escaping steam the "old" engine was obscured, and defendant admits in its answer that plaintiff's intestate could not have seen said engine.

After the "old" engine had been uncoupledfrom train No. 5, plaintiffs intestate was given a sack of mail at the south door of the mail car of No. 5 and was told to put same on No. 29. He went around the west end of the cars of train No. 5, and was going towards the mail car of train No. 29, crossing track No. 2 in a northwesterly direction, and had reached the north rail of track No. 2, when he was knocked down and killed by the "old" engine, which was backing on track No. 2 in the steam.

Plaintiff alleged that the defendant was guilty of negligence in backing the engine in a dense cloud of steam between two passenger trains in a crowded yard, when passengers and employes were likely to be crossing the tracks, and when intestate was accustomed to transfer the mail, also in failing to blow the whistle or ring the bell, or give other signal, and in failing to station a trainman on the rear of the tender, as required by the rules. Defendant admitted that the engine was backing between the two passenger trains. There was evidence that it was customary to transfer the mail from trains on track 3 before the trains on track 3. had pulled out, and that defendant had notice that, not only was plaintiff's intestate likely to be transferring the mails, but that other employes and passengers were also likely to be passing between the trains. Defendant admitted that in this yard, and between these trains, the engine was backing in a cloud of steam, and that the engine backed through this steam without giving any signal with its whistle. The fireman testified that he was ringing the bell with the cord, but a number of witnesses who were very near testified that they did not hear the bell ringing, and the engineer admitted that he was not using the automatic device for ringing the bell with which the engine was provided. The defendant admitted that no trainman was stationed on the rear of the backing engine. Defendant's rule U provides:

"Cars will not be moved in front of engine, or engine moved backward, unless there is an employe on the front of the moving car, or on the rear of the engine, to keep a lookout, in the direction the movement is being made, to avoid striking persons or obstruction on the track. Enginemen, as well as conductors, will be held responsible for violation of this rule."

At the conclusion of the evidence, the defendant moved for judgment of nonsuit, which was overruled, and defendant excepted. The defendant also excepted to dividing the issue of damages. There are also other exceptions, which will be referred to in the opinion.

The jury returned the following verdict:

(1) Was the plaintiff's intestate killed by the negligence of 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 run over by defendant's engine and tender as alleged in the answer?

Answer: No.

(4) What damages, if any, is plaintiff entitled to recover for the infant Clarence Hudson, as alleged in the complaint?

Answer: $600.

(5) What damages, if any, is the plaintiff entitled to recover for the infant Cora Hudson, as alleged in the complaint?

Answer: $800.

(6) What damages, if any, is plaintiff entitled to recover for the infant Ruth Hudson, as alleged in the complaint?

Answer: $1,200.

Judgment was entered on the verdict in favor of the plaintiff, and defendant appealed.

Cansler & Cansler, of Charlotte, and Arm-field & Vann, of Monroe, for appellant.

T. P. Limerick, W. B. Love, and Stack & Parker, all of Monroe, for appellees.

ALLEN, J. The principal exception relied on, and one earnestly urged by the learned counsel for the defendant, is to the refusal to enter judgment of nonsuit which rests upon the following grounds:

(1) That there is no evidence that the failure to ring the bell, or blow the whistle, or to have a man on the tender of the backing train, was the proximate cause of the death of the intestate of the plaintiff.

(2) That there is no evidence that injury to the intestate could be reasonably foreseen or anticipated.

(3) That upon the uncontradicted evidence the intestate assumed the risk of his injury and death.

(4) That if there is any liability of the defendant it is upon the doctrine of the "last clear chance." which is not applied in the federal courts; and, as this action has been tried under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1916, §§ 8657-8665]), the rule of the federal courts must be applied.

In support of the first two positions, the defendant relies on the definition of "proximate cause, " in Ramsbottom v. R. R. 138 N. C. 41, 50 S. E. 448, approved in Bowers V. R. R., 144 N. C. 686, 57 S. E. 453, 12 L. R. A. (N. S.) 446, and in Chancey v. R. R., 174 N. C. 353, 93 S. E. 834, L. R. A. 1918A, 1070, as "a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed, " to which we adhere, with the modification contained in Drum V. Miller, 135 N. C. 204, 47 S. E. 421, 65 L. R. A. 890, 102 Am. St. Rep. 528, and many other cases, that it is not required that the particular injury should be foreseen, and is sufficient if it could be reasonably anticipated that injury or harm might follow the wrongful act.

The language used is (135 N. C. 214, 47 S. E, 424, 65 L. R. A. 890, 102 Am. St. Rep. 528):

"When therefore a willful wrong is committed or a negligent act which produces injury, the wrongdoer is liable, provided in the latter case he could have foreseen that harm might follow as a natural and probable result of his act, for if he can presume that harm might naturally and probably follow, he must necessarily intend that it should follow or he must have acted without earing whether it would or not, which, in effect, is the same thing. It may be stated as a general rule that when one does an illegal or mischievous act which is likely to prove injurious to another, or when he does a legal act in such a careless or improper manner that he should foresee, in the light of attending circumstances, that injury to a third person may naturally and probably ensue, he is answerable in some form of action for all of the consequences which may directly and naturally result from his conduct. * * * In the case of conduct merely negligent, the question of negligence itself will depend upon the further question whether injurious results should be expected to flow from the particular act. The act, in other words, becomes negligent, in a legal sense, by reason of the ability of a prudent man, in the exercise of ordinary care, to foresee that harmful results will follow its commission. The doctrine is thus expressed, and many authorities cited to support it, in 21 A. & E. Ency. Law (2d Ed.) p. 487: 'In order, however, that a party may be liable for negligence, it is not necessary that he should have contemplated, or even been able to anticipate, the particular consequences which ensued, or the precise injuries sustained by the plaintiff. It is sufficient, if, by the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected.' "

Backing a train, without a lookout on the rear, and without notice of its approach, along a track which employes and others...