Inge v. Seabd. Air Line Ry. Co, (No. 88.)

Docket Nº(No. 88.)
Citation135 S.E. 522
Case DateNovember 17, 1926
CourtUnited States State Supreme Court of North Carolina

135 S.E. 522
(192 N.C. 622)

INGE
v.
SEABOARD AIR LINE RY.
CO.

(No. 88.)

Supreme Court of North Carolina.

Nov. 17, 1926.


[135 S.E. 522]

Appeal from Superior Court, Halifax County; Cranmer, Judge.

Action by M. A. Inge against the Seaboard Air Line Railway Company. From a judgment for plaintiff, defendant appeals. No error.

Civil action for actionable negligence under federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665).

plaintiff was an employee of defendant as yard conductor at Weldon, and defendant is a common carrier by railroad, engaged in interstate commerce.

The defendant denied any negligence, and set up (1) contributory negligence; (2) assumption of risk.

The material facts, as testified to by plaintiff, on direct examination in substance: That he left the engineer and switchman in charge of the switch engine, with headlight out and one box car coupled to it, standing still on pass track, and told the switchman to stay there until No. 85, the through freight, pulled out of the yard. No. 85 and the switch engine and box car were on parallel tracks. It was 325 feet from where the engine and box car were left standing to Poplar street public crossing in Weldon, where plaintiff was injured. As No. 85 pulled on down, plaintiff got up on the steps of the engine, just back of his switch train, and asked the engineer what orders he had for No. 82, the through train going north. This was done so that he could govern his movements in switching in the yard, so that No. 82 might not be delayed at the Weldon yard. This was in performance of his reg-

[135 S.E. 523]

ular duty. He was standing on the engine step of No. 85, holding to grabirons, with lighted lantern in his left hand, talking to the engineer, and just as he got to Poplar street crossing he stepped off the engine. The engineer of No. 85 hollered "Look out!" and he glanced over his shoulder and saw the box car of the switch train. He tried to save himself, but was knocked face down and his leg mashed so that it had to be amputated. He heard no signal given by the switch engine approaching the crossing—no bell or whistle. The first knowledge he had that the switch engine crew had disobeyed orders was when the engineer of No. 85 hollered at him to "Look out!" At the time the train hit him, no one from the switch engine gave him any warning. He had not heard it, and, when he glanced back, he did not see any light on the end of the car or anybody there. He was hit by the box car of the backing train on the pass track. There was nothing to prevent the switch engineer, if he was looking, from seeing him step down off of engine No. 85 when he reached Poplar street crossing.

On cross-examination:

"If I had looked back, I would not have gotten off in front of it. If I had looked back and saw the train, of course I would not have been hurt. This is the evidence that I did not look back (exhibiting his injured leg). As I said before, I had told the train to stand still, and I had no reason to look back. I was not expecting the train to move. I stepped off the moving engine, and was looking in the direction in which the engine was moving. I could have seen this other train coming if I had looked. I don't know whether I could have seen it in time to have gotten out of the way. If I had looked back and seen the train coming, and if I had stayed where I was, I would not have been hurt. If I had looked back and seen this train, I certainly would have stayed where I was. I had no occasion to look back though, because I relied upon my orders being obeyed. I had given orders for that train to remain where it was, and I relied upon it standing still. * * * During the time I did not look back. It took some little time to step down between the tracks and to step across to the next track. I never looked back. When I was getting ready to step down off the engine, and when I was between the tracks, and when I started across the next track, I did not look back. My leg shows that I did not look back. I was not trying to get hurt. I had no occasion to be looking for a train. There was no other train on the yard at that time except the one I was riding on and my yard train. I had left my engine and car down the track and had given orders for my train to stand still until No. 85 had pulled through, and I was not expecting any. I was not paying any attention to my train, because I had already given attention to it. If my train had. remained where I ordered it to remain, I would not have been hurt. * * * I am thoroughly familiar with the Weldon yard. I had worked there about two years before this time. I knew the yard very well. It was then just like it is now. * * *"

On redirect examination, he testified:

"The yard at Weldon is not in every respect a standard yard; the standard width between the centers of tracks is 14 feet The distance between the main line and pass track is about 1 foot 8½ inches short of standard."

On recross-examinatlon:

"The tracks are just the same as I have been knowing them all these years. I knew how wide it was between the tracks just from looking at them. I had never measured them in my life until after I was hurt. I knew they were close together. « * * My feeling was terrible. When my leg was mashed, I hardly know how to express it. 1, of course, expected the train to kill me; I cannot express it how I felt. When the wheel struck my leg it felt like a red hot burning sensation, and that kept up for the first 5 days. I felt like I was standing in fire up to my knee. After the first 5 days I suffered practically all the time. I still suffer; I have the sensation of my toes being drawn back and my leg aching. It has affected my nervous system."

Plaintiff was so mashed and mangled that his right leg had to be amputated about 6 inches below the knee.

Plaintiff introduced rule 30 of Rule Book of Seaboard Air Line Railway Company, which is as follows:

"The engine bell must be rung when the engine is about to move and while approaching and passing public crossings at grade and white passing stations."

Defendant offered in evidence rule 103, as follows:

"When cars are pushed by an engine, except when shifting or making up trains in yards, a trainman must take a conspicuous position on the front of the leading car, and, when shifting over public crossings at grade not protected by a watchman, a member of the crew must protect the crossings. This will also apply to engines moving backward."

And also part of general rule M, as follows:

"They (employees) must expect trains to run at any time, on any track, in either direction."

The issues submitted to the jury and their answers thereto were as follows:

"(1) Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

"(2) Did the plaintiff by his own negligence contribute to his injury, as alleged in the answer? Answer: No.

"(3) Did the plaintiff voluntarily assume the risk of injury alleged in the answer? Answer: No.

"(4) What damages, if any, is the plaintiff entitled to recover? Answer: $35,000."

There was evidence supporting the contention of both sides of the controversy. The other facts necessary and assignments of error will be considered in the opinion.

[135 S.E. 524]

W. A. Powell, of Jonesboro, and Murray Allen, of Raleigh, for appellant.

George C. Green, of Weldon, for appellee.

CLARKSON, J. [1, 2] Under the federal Employers' Liability Act, the jurisdiction of the courts of the United States is concurrent with that of the courts of the several states, and any case arising under the act, and brought in any state court, shall not be removable to any of the United States courts. The decisions of the federal courts control over the state courts in all actions prosecuted in the state courts, but the rules of practice and procedure are governed by the laws of the state where the cases are pending.

Under the federal Employers' Liability Act, in the present kind of action, the issues ordinarily submitted are (1) negligence; (2) contributory negligence; (3) assumption of risk; (4) damages.

"The first section of the federal Employers' Liability Act provides that every common carrier by rail, while engaging in interstate commerce and while the servant injured or killed is employed in such commerce, is liable 'for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, tracks, roadbed, works, boats, wharves, or other equipments.' * * *' The clause relating to negligence in the first section of the federal act has two branches—one governing the negligence of any of the officers, agents, or employees of the carrier, which abolishes the common-law fellow-servant doctrine; and the other relating to defects and insufficiencies due to negligence in the railroad's rolling stock, machinery, track, roadbed, works, boats, wharves, or other equipment. These two clauses, it has been held, cover any and all negligent acts of which the carrier could have been guilty under the common law." Roberts, Injuries to Interstate Employees, pp. 18 and 19; Southwell v. Railroad, 191 N. C. at page 157, 131 S. E. 670.

The third section provides that contributory negligence shall not bar recovery, but shall only diminish the damages, except that no employee, injured or killed where the violation of a safety law for employees contributed to the injury, shall be held to have been guilty of contributory negligence.

The fellow-servant doctrine has been abrogated by the United States statute as to railroads engaged, as here, in interstate commerce—that question does not arise, 'in Seaboard Air Line R. Co. v. Horton, 233 U. S. at page 501, 34 S. Ct. 639, 58 L. Ed. 1069, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475, Mr. Justice Pitney, says:

"This clause has two branches—the one covering the negligence...

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15 practice notes
  • Hamilton v. Southern Ry. Co, No. 249.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 1, 1931
    ...U. S. 114, 33 S. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172. Roberts, supra, p. 218, § 112." Inge v. R. Co., 192 N. C. at page 531, 135 S. E. 522, 526; Id., 273 U. S. 753, 47 S. Ct. 456, 71 L. Ed. 874. "A servant does not assume the extraordinary and unusual risks of the employment, and ......
  • Batton v. Atl. Coast Line R. Co, No. 166.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 3, 1937
    ...R. R. Co., 211 N.C. 297, 189 S.E. 764. We think this case similar in many respects to Inge v. Seaboard Air Line R. R. Co., 192 N.C. 522, 135 S.E. 522, where the authorities are fully set forth. Certiorari denied by the Supreme Court of the United States. 273 U.S. 753, 47 S.Ct. 456, 71 L.Ed.......
  • Wilson v. Massagee, No. 525.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 13, 1944
    ...See also among others these North Carolina cases, Renn v. Seaboard Air Line R. R., supra; Inge v. Seaboard Air Line R. R., 192 N.C. 522, 135 S.E. 522, certiorari denied Seaboard Air Line R. R. v. Inge, 273 U.S. 753, 47 S.Ct. 456, 71 L.Ed. 874; Austin v. Southern R. R., 197 N.C. 319, 148 S.E......
  • O'brien v. Parks Cramer Co, (No. 455.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 12, 1928
    ...Murphy v. Lumber Co., 186 N. C. 746, 120 S. E. 342; Shipp v. Stage Lines, 192 N. C. 475, 135 S. E. 339; Inge v. R. R., 192 N. C. 522, 135 S. E. 522. If the defendant desired fuller instruction, or in any special way, it should have asked for an instruction sufficient to present its view or ......
  • Request a trial to view additional results
15 cases
  • Hamilton v. Southern Ry. Co, No. 249.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 1, 1931
    ...U. S. 114, 33 S. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172. Roberts, supra, p. 218, § 112." Inge v. R. Co., 192 N. C. at page 531, 135 S. E. 522, 526; Id., 273 U. S. 753, 47 S. Ct. 456, 71 L. Ed. 874. "A servant does not assume the extraordinary and unusual risks of the employment, and ......
  • Batton v. Atl. Coast Line R. Co, No. 166.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 3, 1937
    ...R. R. Co., 211 N.C. 297, 189 S.E. 764. We think this case similar in many respects to Inge v. Seaboard Air Line R. R. Co., 192 N.C. 522, 135 S.E. 522, where the authorities are fully set forth. Certiorari denied by the Supreme Court of the United States. 273 U.S. 753, 47 S.Ct. 456, 71 L.Ed.......
  • Wilson v. Massagee, No. 525.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 13, 1944
    ...See also among others these North Carolina cases, Renn v. Seaboard Air Line R. R., supra; Inge v. Seaboard Air Line R. R., 192 N.C. 522, 135 S.E. 522, certiorari denied Seaboard Air Line R. R. v. Inge, 273 U.S. 753, 47 S.Ct. 456, 71 L.Ed. 874; Austin v. Southern R. R., 197 N.C. 319, 148 S.E......
  • O'brien v. Parks Cramer Co, (No. 455.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 12, 1928
    ...Murphy v. Lumber Co., 186 N. C. 746, 120 S. E. 342; Shipp v. Stage Lines, 192 N. C. 475, 135 S. E. 339; Inge v. R. R., 192 N. C. 522, 135 S. E. 522. If the defendant desired fuller instruction, or in any special way, it should have asked for an instruction sufficient to present its view or ......
  • Request a trial to view additional results

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