Kinney v. North Carolina R. Co

• Decision Date: 28 May 1898
• Citation: 30 S.E. 313,122 N.C. 961
• Court: North Carolina Supreme Court
• Parties: KINNEY. v. NORTH CAROLINA R. CO.

30 S.E. 313

122 N.C. 961

KINNEY.

v.NORTH CAROLINA R. CO.

Supreme Court of North Carolina.

May 28, 1898.

Injury to Railroad Employe — Negligence — Evidence—Instructions—Fellow Servants.

1. Where two passenger trains collide on the same track, it is evidence of negligence.

2. It is not error to refuse a charge that, if the jury believe the evidence, they should find for a certain party, where the evidence is conflicting.

3. An instruction charging that a certain fact is proved, or if proved, that it proves another fact, violates Code, § 413, which provides that no judge, in a charge, shall give an opinion whether a fact is proven.

4. Where the jury found that plaintiff had not contributed to his injury, it was immaterial, under Priv. Laws 1897, c. 56, abolishing the doctrine of fellow servants as far as railroads are concerned, which servant of defendant railroad was guilty of the negligence proximately causing the injury.

5. Where the lessor leased its entire line of railroad between certain points, including roadbed, track, and switches, and authorized the lessee to carry freight and passengers over the road with its own engines and cars, the lessor is liable for injuries caused by the negligence of the lessee in operating trains over said portion of track with the knowledge and consent of lessor.

Appeal from superior court, Davidson county; Mclver, Judge.

Action by J. C. Kinney against the North Carolina Railroad Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Geo. F. Bason and Charles Price, for appellant.

F. C. Robbins and Long & Long, for appellee.

DOUGLAS, J. This Is an action brought by the plaintiff to recover damages for personal injuries received in a collision at Har-risburg, N. C, on the 11th day of April, 1896. The plaintiff was engineer of train No. 11, which was the local passenger train going south. He started from Danville on the morning of the 11th for Charlotte, leaving Danville some 40 minutes late. When he reached Salisbury he received the following telegraphic order from the office of W. B. Ryder, superintendent at Charlotte, viz.:

"Superintendent's Office. April 11th, 1897. For Salisbury, C. & E. No. 11: No. 36, engine 319, will wait at Concord until 11:20 a. m. for No. 11, engine 840. No. 11 will run by, and back in. W. B. R.

"Time received: 10:22 a. m. O. K. given at 10:24 a. m.

"Conductor Lovell, Engineer J. C. Kinney, train No. 11. Made complete at 10:24 a. m. Received by Crawford. W. B. R."

When he reached Concord he received the following order:

"Superintendent's Office. April 11th, 1897. For Concord, C. & E. No. 11: No. 36, en-gine 319, will wait at Harrisburg until 11:15 a. m. for No. 11, engine 480. W. B. R.

"Time received, 10:47 a. m. O. K. given at 10:48 a. m.

"Conductor Lovell, Engineer J. C. Kinney, train No. 11. Made complete at 11:02 a. m.; Young. W. B. R."

Exact copies of the above orders were given to Tunstall, engineer, and Gentry, conductor, of north-bound train No. 36; both orders being delivered at the same time, viz. at 10:48 on the same day.

The issues submitted, with the answers thereto, are as follows: "(1) Was plaintiff injured by the negligence of defendant's lessee? Yes. (2) Did plaintiff by his negligence contribute to his injury? No. (3) Notwithstanding the contributory negligence of plaintiff, might the injury have been avoided by reasonable care on the part of defendant's lessee? —. (4) What damages has plaintiff sustained by reason of such injury? $20,000. (5) Is defendant company answerable for the negligence of the lessee company in this action? Yes." There was judgment accordingly.

The plaintiff testified, in part, that he arrived with his train at the north switch at Harrisburg at 11:13 1/2a. m., by his watch; that he had sufficient time to have gotten on the switch before 11:15, and would have done so if the collision had not occurred; that when at the whistle post, one-half mile from the station, he Shut off his engine, and blew the station blow, and slowed up so as to stop at the switch; that he looked up, and saw train No. 36 about a third of a mile from him, coming towards him; that he could see only the top of the train, on account of one or more box cars, and could not then tell how fast it was running; that, when No. 36 was within about 1, 200 feet of him, he saw it was coming at the rate of 60 miles an hour; that he then saw there would be a collision; that he put on the air brakes to the full pressure, so as to make his train as steady as possible to resist the shock, fastened the throttle, shut and fastened the furnace door, and stepped off the engine, when he was immediately struck. There was much testimony on both sides, aggregating 159 printed pages besides the exhibits, which it is unnecessary and impracticable to recapitulate here. It is sufficient to say that there was in many respects a serious conflict of testimony, and that that...