Lloyd v. North Carolina R. Co.

• Decision Date: 28 May 1913
• Citation: 78 S.E. 489,162 N.C. 485
• Parties: LLOYD v. NORTH CAROLINA R. CO. et al.
• Court: North Carolina Supreme Court

78 S.E. 489

162 N.C. 485

LLOYD v. NORTH CAROLINA R. CO. et al.

Supreme Court of North Carolina

May 28, 1913

Appeal from Superior Court, Guilford County; Peebles, Judge.

Action by W. L. Lloyd against the North Carolina Railroad Company and the Southern Railroad. From a judgment of nonsuit as to the North Carolina Railroad and a judgment removing the cause to the United States court as to the Southern Railroad plaintiff appeals. Reversed.

Civil action, heard before Hon. R. B. Peebles, judge, and a jury at February term, 1913. The suit originally instituted against the North Carolina Railroad, a corporation of this state, having its franchise and owning a railroad property here, and the Southern Railroad, a corporation of the state of Virginia, operating the road of its codefendant under a 99-year lease, and which, among other things, provides "For the liability of the Southern Railway Company for all of its acts and defaults in the operation of said road" and for a deposit of "not less than $175,000 in cash, or its equivalent, to be applied" to the performance of the stipulations in the contract of lease to be performed by the lessee, and among them "to pay any judgments recovered in any court of the state or of the United States when finally adjudicated for any tort, wrong injury, negligence, default or contract, done, made or permitted by the parties of the second part, its successors, assigns, employés, agents or servants for which the party of the first part shall be adjudged liable whether the party of the first part is sued jointly with or separately from the party of the second part." The complaint alleged, and there was evidence on part of plaintiff tending to show, that a portion of the North Carolina Railroad included in the lease, to wit, from Greensboro through Spencer to Salisbury, N. C., was a part of the trunk line of the Southern Railroad from north to south "along and over which it was and is engaged by and with the consent of the North Carolina Company in transporting interstate commerce from Virginia and all points of North to South Carolina, Georgia, and other points south," etc.; that plaintiff at the time was a locomotive engineer in the employment of the Southern Railroad for the purpose of transporting freight trains containing interstate commerce from, to, and between "Spencer, N. C., and Monroe, Va., and along the main line of the Southern Railroad, a part of which said line included that portion of the North Carolina Railroad from Greensboro to Spencer," and had been for some time prior to the occurrence engaged on this run with an engine, No. 579; that the engine had been taken to the shops of the Southern at Spencer, and, having been overhauled and repaired, it was on a side track near the shops of the company, steamed up and ready, and plaintiff was engaged in oiling and inspecting the same for the purpose of presently making a trial trip to Barber's Junction, a point in North Carolina on the Western North Carolina Railroad, some distance beyond Salisbury, and thus to test the engine with a view of further service; that while so engaged he received serious physical injuries by reason of some defects in the structure or adjustments of the engine, the same being attributed to the negligence of the defendant the Southern Railroad, the facts as to negligence and the nature and extent of the injury being given; that this particular engine had been for some time engaged in the through freight service from Spencer, N. C., to Monroe, Va., and since plaintiff was injured it had been doing the same work; that plaintiff was assigned to the work, and had been engaged in it till his engine was taken to the shop for repairs and during that time the plaintiff had no regular run.

On his cross-examination and speaking to the circumstances of his employment and duties, the witness, in answer to questions, said: "Q. Where you were going or whether you were to do work running inside or outside of the state you did not know? A. I was marked on the division from Spencer to Monroe. I knew I was to do any kind of work that I stood for, relief work for other men running on this line I was assigned to. I was not supposed to run to Barber's Junction.

My assignment was not that way. If I had been called to go to Statesville under the supervision of a competent man, I would have gone, or to Wilkesboro. I would have gone anywhere in the state if they had sent a competent man to carry me there and bring me back. I didn't know the road. I went to Selma occasionally. I think I went to Goldsboro one trip and carried a switch engine; that is in North Carolina. Q. I ask you if it was not your habit to go anywhere your call was indicated by the company as an extra engineer? A. I didn't belong to go there. It was left discretionary whether I did go. Q. Wasn't it your habit to go wherever they called you to go as an extra engineer? A. No, sir. Q. Did you ever refuse to go? A. Yes, sir. Q. Where? A. A good many different places. I refused to go on the branch road. I refused to go to the western part of North Carolina, Asheville, and I refused to go to Charlotte. I have run on the road from Selma to Monroe. That is on this division. I run between Selma and Norfolk when the division extended there. All the men had to run into Virginia out of Selma. At the time I was hurt I was not a regular engineer with a regular run." And, speaking of the place of the injury, the witness said: "The engine was standing on a side track at or near the cinder pit of the company about half way between the shops and the main line of the North Carolina Railroad and more than a hundred feet from said main line and the side track connected with the North Carolina Railroad at the north end of the Spencer yards and with the double-track part of the North Carolina Railroad on the south part of the Spencer yard leading to Salisbury, and there was no way of getting off that side track and onto the main line except over the North Carolina Railroad." In apt time, and accompanied by a proper bond, the defendant the Southern Railway Company filed its petition for removal, duly verified, setting forth its position as to the exact nature and proper place of the occurrence and containing averment that plaintiff was an employé of the Southern Railroad, and not otherwise, as locomotive engineer, his duty being to engage in his work as directed and at any place on the lines of the company; that the exact place of the occurrence was on the yards of the company near its shops, the same having been purchased and owned by the company and the shops built and used for repair and other work for engines and cars used on all portions of the company's system; that it was entirely off the right of way of the North Carolina Railroad and formed no part of that company's property; that the engine in question was subject to be used on any of the roads of the Southern and at the time of the injury it was on this company's property preparatory to taking a trial trip by Salisbury and on to Barber's Junction points entirely within the state of North Carolina, and that no freight was to be handled by said engine at said trip, and no cars of any kind were to be attached thereto; that all these facts were well known to plaintiff when he instituted his suit and filed his complaint, and that said North Carolina Railroad Company had been fraudulently joined in said suit, and the allegation that plaintiff was at the time engaged in interstate commerce had been falsely and fraudulently made with the sole purpose of preventing a removal of the case to the federal courts and with no bona fide purpose of obtaining the relief against said North Carolina Company as stated in the complaint.

On this matter the express averments of the petition were as follows "Your petitioner says that the plaintiff at the time he received the injuries complained of was an employé of your petitioner, and not an employé of its codefendant, the North Carolina Railroad Company, and was not, and never had been, an employé of the said North Carolina Railroad Company, and that all the said facts herein set forth, with reference to the lease, the location and situation of the cinder pit and side track, and the duties which plaintiff was to perform on the day in question, were well known to plaintiff when this action was brought and complaint filed. Your petitioner further says that to avoid the removal of this case by it to the federal court the plaintiff joined the North Carolina Railroad Company, a North Carolina corporation, and falsely and fraudulently alleged in his complaint that the side track upon which the engine was located at the time he was injured was 'one of the side tracks of the North Carolina Railroad Company's main line at Spencer,' and falsely and likewise fraudulently alleged in his complaint that he suffered injury while employed by your petitioner in interstate commerce, and falsely and fraudulently alleges that he was engaged in interstate commerce at the time of his injury, and that said engine was likewise so engaged, when, at the time said allegations were made, plaintiff well knew that they were untrue, or could, by the exercise of the slightest diligence, have ascertained the true facts in connection therewith, and your petitioner further states that plaintiff did not and does not expect to establish said allegations, and did not make them for the purpose of proving them at the trial or substantiating his cause of action therewith, but made them solely for the purpose of setting up a joint cause of action against the defendants as lessor and lessee, and to state a cause under the Employer's Federal Liability Act in order to make a case which would not be removable to the federal court." The petition for...