Lamb v. Atlantic Coast Line R. Co.

• Decision Date: 02 June 1920
• Docket Number: 308.
• Citation: 103 S.E. 440,179 N.C. 619
• Parties: LAMB v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

103 S.E. 440

179 N.C. 619

LAMB v. ATLANTIC COAST LINE R. CO.

No. 308.

Supreme Court of North Carolina

June 2, 1920

Appeal from Superior Court, New Hanover County; Allen, Judge.

Action by H. B. Lamb against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant excepts and appeals. No error.

The complaint is as follows:

The plaintiff, complaining of the defendant, alleges:

First. That the defendant is a corporation duly chartered and existing according to law, and engaged in running and operating a line of railroad from Richmond, Va., to Tampa Fla., and as such is engaged in interstate commerce.

Second. That on or about the 8th of May, 1917, this plaintiff was employed by the defendant company and had been employed as flagman for about 18 months on its freight trains, and on the said day and date aforesaid the plaintiff was engaged as a flagman on train known as extra 390, transporting interstate merchandise, said train being at the time under the control of Charles Loper, conductor.

Third. That when reaching a position near Teacheys, a station on the Atlantic Coast Line Railroad, it became necessary, in noticing the approach of an extra freight train coming up behind train 390, on which this plaintiff was flagman, to procure and place a fuse on the track to warn the said train approaching from behind, and the plaintiff, in order to secure the fuse, went to the customary position in the cab where said fuses were kept and raised up the lid of the box where they were kept to get the same, when, without any notice or warning to the plaintiff, the agent of the defendant company suddenly caused the said freight train to come to a stop, whereby this plaintiff was violently and forcibly thrown against the edge of the box and suffered severe and permanent injury.

Fourth. That, by the sudden and forcible striking of the plaintiff against the corner of the box in which the said fuses were kept, this plaintiff had his left testicle mashed, which has become swollen to twice its size as originally, and still is in that condition, and he is advised and believes, and therefore avers, that the said injury is permanent and that he will be unfit to do any work after much walking or strain.

Fifth. That at the time said plaintiff struck the said box he was thrown violently on the floor and had the breath knocked out of him, but after becoming conscious he arose and afterwards reported the matter to the conductor when he came to the cab.

Sixth. That by reason of said injury this plaintiff was sent by the defendant company to the hospital at Rocky Mount, where he was allowed to proceed to his home, and while at his home the plaintiff suffered intense pain and agony for nearly two weeks, when he was advised to come to the city of Wilmington for treatment, and under the advice of a physician he took to his bed and was treated by a physician for three weeks during which time he suffered intense agony and pain.

Seventh. That the plaintiff had enlisted in the United States army prior to the accident, and was received as a healthy and strong man in the enlistment, and that on or about July 1917, the plaintiff, feeling some relief from his trouble, was mustered into the United States army without making known to the government his injury, and was sent to Camp Sevier, and, although he has tried to discharge his duties in the army, he has been laid up in the hospital there for three weeks, and has suffered and still suffers great pain and anguish whenever he is forced to march.

Eighth. That the plaintiff had to pay two months' board in the city of Wilmington, at a cost of $60 during his treatment, and has paid his physician already the sum of $25, and has lost, from the month of April, 1917, up to the time he was actually mustered into the service of the government $100 per month, which he was receiving at the time.

Ninth. That the defendant company was negligent and careless in stopping the said train too suddenly and in not exercising due care and caution in making the said stop, and by said negligence caused the plaintiff's injury.

Wherefore, plaintiff prays judgment against the defendant:

First. For the sum of $7,000 for the permanent injury received by him and the suffering and anguish he has sustained.

Second. For the sum of $500 for the loss of his earnings and the cost of board and medical hire which he has sustained by reason of said accident.

Third. For the costs of this action.

The action is by an employé engaged in interstate commerce and on duty at the time of the occurrence to recover damages for personal injuries caused by the alleged negligence of defendant company, chiefly in the sudden, unusual, violent, and negligent stopping of a freight train by defendant company or its agents and employés whereby plaintiff received serious and painful physical injury, from which he still suffers, etc.

There was denial of liability on the part of defendant, pleas of contributory negligence, assumption of risk, evidence offered by the parties to sustain their respective positions, and on issues submitted the jury rendered the following verdict:

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

(2) Did the plaintiff assume the risk and danger of such injury? Answer: No.

(3) Did the plaintiff of his own negligence contribute to his injury as alleged in the complaint? Answer: No.

(4) What damages, if any, is plaintiff entitled to recover? Answer: $7,500."

The court having reduced this verdict to $3,500 damages, "plaintiff's counsel consenting thereto," there was judgment for said sum of $3,500, and defendant excepted and appealed, assigning for error the refusal to sustain defendant's motion for nonsuit.

Rountree & Davis, of Wilmington, for appellant.

Wright & Stevens, of Wilmington, for appellee.

HOKE J.

The action is brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), and, this being true, the question of substantive liability must be determined according to "its provisions applicable and authoritative federal decisions construing the same." Jones v. Railroad, 176 N.C. 260-264, 97 S.E. 48, citing Belch v. Railroad, 176 N.C. 22, 96 S.E. 640; 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, 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.

And, the action having been instituted in the state court, the state regulations and rulings as to procedure will control, except where the federal statute makes provision to the contrary. Belch v. Railroad, 176 N.C. 22, 96 S.E. 640, and authorities cited, among others Bauserman v. Blunt, 147 U.S. 647, 13 S.Ct. 466, 37 L.Ed. 316, and Quinette v. Pullman Co., 229 F. 333, 143 C. C. A. 453. And see, also, Fleming v. Railroad, 160 N.C. 196, 76 S.E. 212; Horton v. Railroad, 169 N.C. 116, 85 S.E. 218, opinion by Associate Justice Walker. Considering the record in view of these positions, and on the principal issue as to liability, that of defendant's negligence, it is held in both federal and state decisions that there must be affirmative proof of negligence of the defendant, the proximate cause of plaintiff's injuries, and, while this negligence may be established by circumstantial evidence, the relevant facts must be of such significance as to remove the case from the realm of conjecture and permit the inference of negligence as the more reasonable probability. New Orleans, etc., R. R. v. Harris, 247 U.S. 367, 38 S.Ct. 535, 62 L.Ed. 1167; Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, Ann. Cas. 1914D, 905; Looney v. Railroad, 200 U.S. 480, 26 S.Ct. 303, 50 L.Ed. 564; Ridge v. Railroad, 167 N.C. 510, 83 S.E. 762, L. R. A. 1917E, 215; Fitzgerald v. Railroad, 141 N.C. 530, 54 S.E. 391, 6 L. R. A. (N. S.) 337.

The principle referred to and applied in these and other decisions of like import is stated in Fitzgerald's Case as follows:

"Direct evidence of negligence is not required, but the same may be inferred from acts and attendant circumstances, and, if the facts proved establish the more reasonable probability that the defendant has been guilty of actionable negligence, the case cannot be withdrawn from the jury, though the possibility of accident may arise on the evidence."

Again it is recognized in both jurisdictions that railroad companies in the operation of their freight trains are held to a high standard of care reasonably commensurate with the risks and dangers usually attendant upon the work, and, although negligence may not be inferred from the ordinary jolts and jars incident to their operation, it may be imputed where there has been a "sudden, unusual, and unnecessary stopping of such trains, likely to and which do result in serious and substantial injuries to employés or passengers thereon." Texas & Pacific Ry. v. Behymer, 189 U.S. 469, 23 S.Ct. 622, 47 L.Ed. 905; Texas Ry. v. Archibald, 170 U.S. 665-673, 18 S.Ct. 777, 42 L.Ed. 1188; Indianapolis, etc., Ry. v. Horst, 93 U.S. 291, 23 L.Ed. 898; Jones v. Railway, 176 N.C. 260, 97 S.E. 48; Ridge v. Railway, 167 N.C. 510, 83 S.E. 762, L. R. A. 1917E, 215; Suttle v. Railway, 150 N.C. 668, 64 S.E. 778; Marable v. Railroad, 142 N.C. 557, 55 S.E. 355; Cin., N. O. & T. P. Ry. v. Evans, Adm'r, 129 Ky. 152, 110 S.W. 844.

Further the authoritative cases construing the statute are to the effect that, as to suits coming under its provisions, it abolishes the fellow-servant doctrine by which an employé is relieved from liability...