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."
HOKE
J.
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...
