Jones v. Norfolk Southern R. Co.

• Decision Date: 23 October 1918
• Docket Number: 257.
• Parties: JONES v. NORFOLK SOUTHERN R. CO.
• Court: North Carolina Supreme Court

97 S.E. 48

176 N.C. 260

JONES v. NORFOLK SOUTHERN R. CO.

No. 257.

Supreme Court of North Carolina

October 23, 1918

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

Action by A. V. Jones against the Norfolk Southern Railroad Company. From judgment for plaintiff, defendant appeals. No error.

A verdict must be interpreted and allowed significance by proper reference to the testimony and the charge of the court.

The action is to recover damages for physical injuries to plaintiff caused by the alleged negligence of defendant company, and the complaint, giving in each the true place and circumstances of the occurrence, states the grievances in two causes of action, in one of which there is direct averment that plaintiff was an employé on defendant's train engaged at the time as a common carrier of interstate commerce, and a second cause of action without such averment. Defendant having admitted in the answer that the train at the time was engaged in interstate commerce, the action was tried as one under the federal Employers' Liability Act, and on issues presenting the defenses and pleas recognized by that statute. On the hearing, the evidence on the part of plaintiff tended to show that, on the occasion in question he was an employé on defendant's freight train running from Raleigh, N. C., towards Norfolk, Va., and at or near a station called Simms he was upon a box car, pursuant to orders, in the line of his duty and employment, engaged in making a flying or running switch, by means of which the car was to be placed on the siding at Simms; that the usual method is for the engine to draw the car to a speed required to run the same on the siding of its own momentum; the engine then slows down sufficiently to take up the slack and allow the coupling to be removed, when the engine speeds down the main line allowing the car to run on the side track as designed; that the proper way to do this is to slow down gradually, and there is a special appliance on the engine called the "Johnson bar," to enable him to do this without any threatening or unusual jolt; that the engine driving the car having reached a speed 10 or 12 miles an hour, "going very fast," by plaintiff's own testimony, the engineer, by the application of direct air or the unusual manner of applying it brought his engine to a sudden, unusual, and unnecessary stop; that plaintiff, doing what he could to hold himself in place, was thereby thrown upon the track in front of the car and run over, causing the loss of one leg, seriously wounding another, and painfully lacerating other portions of his person. A rule offered by defendants, permitting flying switches to be made, contained among other things, the admonition: "That great care must be exercised at all times in making any flying switch or in kicking cars." In addition to the rule permitting these flying switches to be made, there was testimony on the part of defendant tending to show that this flying switch was made in the usual way without causing any sudden or unusual jolt, and that plaintiff fell from the car by reason of his own inattention and negligence. On issues submitted, the jury rendered the following verdict:

"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 the occurrence of his injuries as alleged in the answer? Answer: No.

(3) Did the plaintiff assume the risk of the occurrence of the injuries which he sustained and here complained of? Answer: No.

(4) What damages, if any, is the plaintiff entitled to recover of the defendant? Answer: Seventeen thousand five hundred dollars ($17,500)."

Judgment on the verdict, and defendant excepted and appealed.

R. N. Simms, of Raleigh, for appellant.

Douglass & Douglass and J. S. Manning, all of Raleigh, for appellee.

HOKE J.

It was chiefly objected to the validity of the trial that his honor refused to hold as a matter of law that plaintiff was barred of recovery by reason of assumption of risk; this on the ground, first, that the making of a flying switch was one of the ordinary incidents of plaintiff's employment, second, that the engineer engaged in making such switch was a fellow servant and, on the facts in evidence, his negligence, if it should be established, should be properly classed as one of the assumed risks in the course of plaintiff's employment. But, in our opinion, neither position can be sustained. The first is closed to defendant by reason of the finding of the jury on the first issue. It is the accepted principle in our procedure that a verdict must be interpreted and allowed significance by proper reference to the testimony and the charge of the court. Reynolds v. Express Co., 172 N.C. 487, 90 S.E. 510, Ann. Cas. 1918C, 1071; Donnell v. Greensboro, 164 N.C. 330, 80 S.E. 377. In the present case, while the complaint seems to specify the "making of the flying switch as a separate act of negligence, a perusal of the evidence and the charge of the court will disclose that the making of the switch itself was not allowed as a ground of liability, but that the considerations and decisions of the first issue were restricted to the question whether there was negligence in making such switch by bringing the engine to an unnecessary and unusual stop"; the language of his honor's direct charge on the first issue being as follows:

"If you should find from the evidence and by the greater weight of the evidence that the engineer suddenly, by use of air brake, or any other appliance, suddenly and unnecessarily checked the speed of the engine in such a manner as to cause an unusual and unnecessary jar sufficient to throw the plaintiff from the car, and he was thrown by reason of that from the car and run over and hurt, you will answer the first issue, 'Yes,' but if you fail to so find you will answer it, 'No.' "

The verdict on the first issue, therefore, having eliminated "the making of a flying switch as a ground of liability," that fact as a separate circumstance is "withdrawn from consideration also on the question of assumption of risk. And this, too, is the final answer to the second ground of defendant's objection, though, as argued, this presents other questions that it may be well to consider. At common law or under the later decisions of the common-law courts, the negligence of a fellow servant was classed among the risks assumed by an employé engaged in a common service, and, on the facts of this record, the engineer and brakeman are undoubtedly fellow servants within the meaning of the principle. New England R. R. v. Conroy, 175 U.S. 323, 20 S.Ct. 85, 44 L.Ed. 181; B. & O. Ry. v. Baugh, 149 U.S. 369, 13 S.Ct. 914, 37 L.Ed. 772. This cause, however, coming under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), it is fully established that the statute itself affords the exclusive and controlling rule of liability, and the question presented must be determined in accord with its provisions and applicable and authoritative federal decisions construing them. Belch v. Seaboard Air Line, 96 S.E. 640, at the present term, citing Erie R. R. v. Winfield, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057, Ann. Cas. 1918B, 662; N.Y. Central v. Winfield, 244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139; St. Louis, etc., R. R. v. Hesterly, Adm'r, 228 U.S. 702, 33 S.Ct. 703, 57 L.Ed. 1031; Second Employers' Liability Cases, 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L. R. A. (N. S.) 44.

While the law in question clearly recognizes assumption of risk as a defense in certain instances, under section 4 (section 8660) such a position is absolutely inhibited in cases where the violation of a federal statute, enacted for the protection of the employés, contributed to the injury or death of employé and, by correct deduction from the terms and meaning of section 1 (section 8657), making railroads engaged as common carriers of interstate commerce liable in damages for injuries or death caused by the negligence of their officers, agents, or employés, the negligence of fellow servants is withdrawn from the class of assumed risks, in cases of unusual and instant negligence and under circumstances which afforded the injured employé no opportunity to know of the conditions or appreciate the attendant dangers. This doctrine of assumption of risk is based upon knowledge of a fair and reasonable opportunity to know, and usually this knowledge and opportunity must "come in time to be of use." 26 Cyc. p. 1202 citing Wright v. Chicago, I. & L. Ry. Co., 160 Ind. 583, 66 N.E. 454. This principle is very generally approved in the cases and textbooks on the subject, and in authoritative federal decisions construing the act in question, in reference to the negligence of fellow servants and the incidental assumption of risks, it has been held that the effect of this first section is to place the conduct of fellow servants on the same plane as the employer himself in such cases, and it is fully recognized that an employé does not assume the risks of his employer's negligence unless, as stated, he is given fair opportunity to know and appreciate the risks to which he is thereby subjected. Chesapeake & Ohio Ry. v. De Atley, 241 U.S. 311, 36 S.Ct. 564, 60 L.Ed. 1016; Yazoo, etc., Ry. v. Wright, 235 U.S. 376, 35 S.Ct. 130, 59 L.Ed. 277; Seaboard Air Line v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Gila Valley, etc., Ry. v. Hall, 232 U.S. 94, 34 S.Ct. 229, 58 L.Ed. 521; Texas & Pacific Ry. v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 47 L.Ed. 905; 2 Employers' Liability Cases, 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, ...