Lloyd v. North Carolina R. Co.

Citation66 S.E. 604,151 N.C. 536
Decision Date23 December 1909
CourtUnited States State Supreme Court of North Carolina

Appeal from Superior Court, Orange County; Long, Judge.

Action by W. F. Lloyd against the North Carolina Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

While the court will hear evidence and determine the precise moment of time when a statute was enacted, where it is necessary to prevent a wrong or to assert a meritorious right, yet, in the absence of such evidence or means of proof, the statute is deemed effective from the first moment of the day of its enactment.

The complaint alleged, in substance, and there was evidence tending to show that on the 5th day of March, 1907, about 1:45 p. m. of said day, the plaintiff, in endeavoring to get aboard a moving freight train with which he was employed missed his hold, and was run over and seriously and permanently injured to his great and irreparable damage; that the train in question was one carrying freight from Monroe Va., to Spencer, N. C., for defendant road; that the injury was brought about by reason of the fact that he had been compelled or directed by defendant to remain continuously upon duty for 23 hours, without any sleep, and without proper nourishment or opportunity to get it, and was thereby so weakened in mind and body that he could not properly exert himself for his own safety and protection, etc. The portion of the complaint stating the cause of his injury is as follows:

"(5) That in passing over the road above referred to, from station to station, the plaintiff had become weary overwork, and very weak and hungry, and after 2 o'clock a. m. on the morning of March 5th he had no opportunity whatever to secure food or sustenance of any kind; that while at Greensboro yard, about the hour of 12:30 o'clock on March 5th, the conductor of the train requested plaintiff to come with him (the conductor) to the shanty car to eat something, while en route to High Point, provided a substitute could discharge the duties of the plaintiff; that, it appearing the substitute could relieve plaintiff, the engineer, who was plaintiff's superior officer, directed him (the plaintiff) to get off the engine while it was moving and go back to the shanty car for some food; that in obedience to said directions, while the train was in motion, plaintiff left a substitute as fireman, in order to go back to the shanty car for the purpose of obtaining something to eat; that the engineer upon the train on which he was riding, well knowing that unless the train was stopped plaintiff must board it while it was moving, carelessly and negligently did not stop the train for him to get off or on, but the plaintiff, at a time when the train was moving slowly, under the direction of the engineer, alighted from the engine and stood in a roadway between the two tracks, on defendant's right of way, at a point about one mile from High Point, until the caboose car should come by, so that he could board the car for the purpose of obtaining food, which he was compelled to have; that he stood in said roadway, on the right of way of the defendant, between said tracks, waiting for the shanty car to reach him; that the train was running slowly, and under ordinary circumstances the plaintiff would have been able to board the car without danger or injury to himself, but the defendant's lessee had carelessly, negligently, wrongfully, and unlawfully constructed on the side of the roadway an embankment about one foot high, out of rock ballast, which it had used in ballasting the track, and by reason of the careless, negligent, wrongful, and unlawful conduct of the defendant's lessee in requiring plaintiff to work so many hours consecutively without rest, and so many hours consecutively without food or nutrition or sleep, the plaintiff was weak, fatigued, and exhausted, and was not in a normal condition of body or mind; that in his effort to board the moving shanty car, and in the exercise of due care, his feet came in contact with the embankment of ballast above referred to, which defendant's lessee had carelessly and negligently placed there, and this broke his hold upon the shanty car, and caused him to fall, throwing him on the track under the car, and wounding, bruising, and maiming him, as will more fully appear.

"(6) That by reason of the negligence, carelessness, and wrongful and the unlawful conduct of the defendant's lessee, as hereinbefore set out, the plaintiff was thrown down and under the car, his head wounded and bruised, his left ankle and knee cut, bruised, and sprained, and his right leg so mangled, broken, and cut as to require amputation six inches above the knee, and the plaintiff suffered great pain, both of body and mind, has incurred much expense for nursing, medicine, and doctor's bills, lost time, and his power to labor, and is now unfitted to do work, all to his great damage in the sum of $20,000."

There was motion for nonsuit, properly entered, which was overruled, and on issues submitted the jury rendered a verdict for plaintiff. Judgment on verdict, and defendant excepted and appealed, and now moves here that the court dismiss the action "for that the complaint does not state a cause of action, and for that it appears from said complaint that the plaintiff, at the time of the alleged injury, was engaged in violating the criminal laws of the state of North Carolina, and that his alleged injuries grew out of such violation of the criminal laws of the state."

W. B. Rodman and S. M. Gattis, for appellant.

V. S. Bryant, Aycock & Winston and H. A. Foushee, for appellee.


On the 4th day of March, 1907, the day before the occurrence, our General Assembly enacted a statute (Laws 1907, pp. 665, 666, c. 456) containing the following sections:

"Sec. 4. Any conductor, flagman, fireman, engineer, brakeman, or other member of any train crew who shall work for any railroad company more than sixteen hours in any twenty-four hours, shall be guilty of misdemeanor, and upon conviction shall be fined or imprisoned, or both, in the discretion of the court: Provided, that it shall not be held a violation of this act by any conductor, brakeman, flagman, engineer, fireman or other member of any train crew who shall work more than sixteen hours in any twenty-four hours in order to clear the track or tracks of said railroad company from wrecks, washouts, or obstruction caused by the act of God, so that they may bring the train or trains operated by them to a station on said road, which station shall be either the scheduled destination of said train or the station at which there is regularly a change of train crews; nor shall it be held a violation of this act by the corporation, officers or agents thereof, to permit the said conductor, flagman, brakeman, fireman, engineer or other member of a train crew to work overtime under the circumstances and conditions hereinbefore stated.
"Sec. 5. This act shall be in force from and after its ratification."

And under and by virtue of this statute, which was then in force, we are of opinion that, on the facts as now stated in the complaint, no recovery can be had.

It is very generally held, universally so far as we are aware, that an action never lies when a plaintiff must base his claim, in whole or in part, on a violation by himself of the criminal or penal laws of the state. In 1 Waite's Actions and Defenses, p. 43, the principle is broadly stated as follows: "No principle of law is better settled than that which declares that an action cannot be maintained upon any ground or cause which its law declares to be illegal"--citing Davidson v. Lanier, 4 Wall. 447, 18 L.Ed. 377; Rolfe v. Delmar, 7 Rob. (N. Y.) 80; Stewartson v. Lothrop, 12 Gray (Mass.) 52; Howard v. Harris, 8 Allen (Mass.) 297; Pearce v. Brooks, L. R. 1...

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