Kimbrough v. Hines
| Decision Date | 26 October 1921 |
| Docket Number | 254. |
| Parties | KIMBROUGH v. HINES, DIRECTOR GENERAL OF RAILROADS, ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; Connor, Judge.
Action by J. W. Kimbrough against Walker D. Hines, Director General of Railroads, and the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendants appeal. Affirmed as to the Director General, and reversed as to the railroad.
Where employee of railroad under federal control was injured through negligence of train crew, he could not proceed against the railroad, but must proceed only against the Director General of Railroads, in view of General Order No 50.
Murray Allen, of Raleigh, for appellants.
Douglass & Douglass, R. W. Winston, and J. M. Broughton, all of Raleigh, for appellee.
This case was before us at fall term, 1920 (Kimbrough v Hines, 180 N.C. 274, 104 S.E. 684), and a new trial was granted in an opinion by Walker, J. It appears from the transcript in this case that the trial judge has observed the directions in every respect laid down in that opinion, and therefore we do not deem that it is necessary to repeat the law applicable to the facts which are identical with those presented on the former appeal.
This action was brought against Walker D. Hines, Director General, and the Atlantic Coast Line Railroad Company. The judgment is against each of the defendants. Since this case was tried, the United States Supreme Court, in the opinion in R. R. v. Ault, 256 U.S. 554, 41 S.Ct. 593, 65 L.Ed. 1087, filed July 1, 1921, have held that where such actions as this have been brought against the Director General joining as a party the railroad company which was being operated under General Order No. 50, that the action cannot be sustained as against the railroad company. The plaintiff in this case now submits that a modification of the judgment should be ordered reversing the judgment, and dismissing the action, as to the Atlantic Coast Line Railroad Company.
The issues in this case affecting the liability of the Director General and the railroad company were separate and distinct, and, had the trial judge stricken out all allegations in the complaint and the issues relating to the railroad company, there would have remained a perfectly alleged cause of action against the Director General. The nature of the evidence would in no respect have been changed, and the verdict of the jury would have been the same. The Director General has no ground to insist that the judgment against the railroad company should not be reversed and the action dismissed as to said company.
C. S. § 658, reads thus:
"Upon an appeal from a judgment or order, the appellate court may reverse, affirm, or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties, and may, if necessary or proper, order a new trial."
C. S. § 1412, provides in part as follows:
"In every case the court may render such sentence, judgment and decree as on inspection of the whole record it shall appear to them ought in law to be rendered thereon."
Under the technical rules of the common law a different rule prevailed, but the court of equity always followed this procedure, which was adopted by this state when the distinction between law and equity was abolished. One court having taken the place of both law and equity, a joint judgment may be affirmed as to one defendant, and dismissed as to another. This has been the uniform course and practice since the blending of the two forms of procedure, and is expressly authorized by our statutes, above quoted. Newberry v. R. R., 160 N.C. 156, 76 S.E. 238; Hollingsworth v. Skelding, 142 N.C. 242, 55 S.E. 212; Long v. Swindell, 77 N.C. 185. The same practice has been followed in the courts of the other states which have adopted the modern system of practice.
Every objection which could be presented by the Director General is presented before us by this record as fully as it would be if the judgment as to the Atlantic Coast Line Railroad Company were not dismissed in pursuance of the decisions of the United States Supreme Court in R. R. v. Ault, supra, and the appeal as to the Director General has been in no wise prejudiced by the reversal of the judgment and the dismissal of the action as against the railroad company. Indeed, in Ault's Case the court recognized this course, for, while reversing the judgment as to the railroad company as an unnecessary and improper party, it proceeded to review and discuss the appeal as to the Director General on the merits and reversed that appeal on an entirely different ground.
The judgment against the Atlantic Coast Line Railroad Company is reversed and set aside, and the action as regards that company is dismissed. In the appeal by the Director General we find no error.
I concur with the other judges that the defendant railroad company is not liable under the recent decision of the United States Supreme Court in Mo. Pac. R. R. Co. v. Ault, appearing in 256 U.S. 554, 41 S.Ct. 593, 65 L.Ed. 1087, filed July 1, 1921, and that therefore defendant has properly been dismissed from the case with its costs.
(2) It may grant to the defendant any affirmative relief to which he may be entitled.
(3) In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper."
It was right to proceed further against the Director General. These latter exceptions of the defendant, as to the judgment, were properly denied, which brings us to the merits of the case.
Plaintiff brought this action to recover damages for personal injuries sustained at Selma, N. C., January 27, 1919, as the result of a collision at a public crossing between the automobile which he was driving and a train on the line of the Atlantic Coast Line Railroad Company, which was being operated by the United States Railway Administration. There was testimony, on behalf of plaintiff, tending to show that the train was running at a speed of 30 or 40 miles an hour; that no signal of approach to the crossing was given by whistle or bell; that the view of the track was cut off by a string of cars on a spur track; and that these cars extended two or three feet into the public road. Plaintiff testified that he looked and could not see down the track in the direction from which the train was coming, because his view was obstructed by the cars on the spur track.
There was testimony on behalf of the defendant tending to show that the cars on the spur track did not obstruct the plaintiff's view of the train, as the end of the car next to the crossing was some distance therefrom, that notice of the approach of the train had been given by blowing the whistle and ringing the bell, and that the speed of the train did not exceed 10 or 12 miles an hour. The defendants pleaded the plaintiff's contributory negligence as a defense, and contended at the trial that the failure of the plaintiff to stop before entering upon the track, when it was his duty to do so, was, as matter of law, the proximate cause of his injury, as the facts with regard thereto were not questioned.
The case was before the court at the fall term, 1920, and a new trial was ordered. In the opinion of the court (180 N.C. 274, 104 S.E. 684), it is stated that the decision of the motion for a judgment of nonsuit would be reserved. This motion should be allowed, upon the facts as they now appear.
"The failure of a person about to cross a railway track, on a highway at grade, to look and listen for an approaching train, or stop for such purpose, where the view of the track is obstructed, or where there is noise which he may control, * * * is negligence per se, which will bar a recovery for an injury resulting from a collision with a train at such crossing." Blackburn v. Railroad, 34 Or. 215, citing numerous cases in support of this position at page 222, 55 P. 225, 226; R. R. v. Biwer (C. C. A.) 266 F. 965.
In Chase v. Maine Central R. R. Co., 167 Mass. 383, 45 N.E. 911, it is said to be a general rule:
"That, if there is anything to obstruct the view of a traveler on the...
To continue reading
Request your trial
-
Williams v. Seaboard Air Line Ry. Co.
... ... prior right of the public to use their own highways, each ... having its duties, and each bound to observe the ... requirements. See Kimbrough v. Hines, 180 N.C. 285, ... 289, 104 S.E. 684, which recites, though in dissenting ... opinions, the rules which were not disputed by any one as to ... ...