Lloyd v. Southern Ry. Co

• Decision Date: 26 May 1914
• Docket Number: (No. 402.)
• Court: North Carolina Supreme Court
• Parties: LLOYD. v. SOUTHERN RY. CO. et al.

(166 N.C. 24)

81 S.E. 1003

LLOYD.

v.SOUTHERN RY. CO. et al.

(No. 402.)

Supreme Court of North Carolina.

May 26, 1914.

1. Removal of Causes (§ 89*)—Right of State Court to Review Order of Removal.

Though the trial court entered an order removing the cause to the federal court, and, in compliance therewith, a transcript of the record was filed and the case docketed in the federal court, the Supreme Court of the state may review the order of removal, and, upon reversal, the case stands in the state court as though there had been no order of removal.

[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 162, 165, 189, 192-195, 197, 200, 201; Dec. Dig. § 89.*]

2. Master and Servant (§ 297*)—Injuries to Servant—Trial—Special Interrogatories,

In a personal injury action under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), the refusal of special issues as to whether the employs was guilty of contributory negligence, what the total damages were, and how much should be deducted on account of contributory negligence is. proper; for, under the act, the jury may consider contributory negligence only in mitigation of damages, and answers to the special issues would not enable the court to determine whether the jury had correctly estimated the damages.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dec. Dig. § 297.*]

3. Trial (§ 165*)—Directed Verdict—Jury Question.

Upon a motion for nonsuit, the evidence is to be construed most favorably to the plaintiff.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 373, 374; Dec. Dig. § 165.*] ■

4. Master and Servant (§§ 101, 102*)—Injuries to Servant.

An employer does not guarantee the safety of his employes, being bound merely to exercise ordinary care to provide a reasonably safe place to work and reasonably safe tools and appliances.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.*]

5. Master and Servant (§ 217*)—Injuries to Servant—Assumption of Risk.

A railroad engineer, bound only to inspect his engine and to report any defects, does not assume the risk of injury from the negligent adjustment of the lever of an ash pan on the engine, which had just left the repair shop; this also being the rule under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), declaring the employer liable for injury to the employ^ by reason of any defect, due to its negligence, in its engines or appliances.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*]

6. Master and Servant (§ 286*)—Injuries to Servant—Assumption of Risk.

. In an action under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), declaring the master liable for injury resulting from any defect in its engines or appliances due to its negligence; the question whether the railroad company was guilty of negligence in furnishing an engineer with an engine on which the lever governing the ash pan was improperly adjusted held, under the evidence, for the jury.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]

7. Appeal and Error (§ 1078*)—Waiver of Errors on Appeal.

Under court rule 34 (164 N. C. 551, 81 S. E. xii), declaring that exceptions not set out in appellant's brief, or in support of which no argument is made, will be taken as abandoned, assignments of error relied on only as a part of a group of assignments will not be separately considered.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4256-4261; Dec. Dig. § 1078.*]

8. Appeal and Error (§ 1067*)—Harmless Error—Instructions.

An assignment of error to the refusal of an instruction requested by defendant cannot be sustained, where the facts recited therein, if found, would not defeat plaintiff's recovery.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. § 1067.*]

9. Commerce (§ 27*)—Interstate Commerce— What Constitutes.

Where an engineer makes a trial run to test an engine exclusively used to draw a train engaged in interstate commerce, he is engaged in interstate commerce, although the trial run was wholly within the state; and hence a right of action for injuries received on the trial run is governed by the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]).

[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]

10. Commerce (§ 27*)—Interstate Commerce —Persons Engaged.

The lessor of an intrastate railway which the lessee used in connection with its interstate business is also engaged in interstate commerce.

[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]

11. Master and Servant (§ 262*)—Assumption of Risk—Pleading—Necessity.

Assumption of risk is a matter of defense which must be pleaded by defendant.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 855-859; Dec. Dig. § 262.*]

12. Removal of Causes (§ 86*)—Right to Remove—Petition.

A petition to remove a case to the federal court because of diversity of citizenship must, where plaintiff had joined a resident as defendant, state the facts showing a fraudulent joinder; the mere general allegation of fraud being insufficient.

[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 132, 166-179; Dec. Dig. § 86.*]

13. Removal of Causes (§ 89*)—Petition-Right of State Couet.

Where plaintiff jointly sued, in the state court, a resident and a nonresident, the state court is entitled to pass upon the sufficiency of the nonresident's petition for removal to the federal court, on the ground of fraudulent joinder, although if the petition alleges facts sufficient to show fraudulent joinder, that issue is to be determined in the federal court.

[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 162, 165, 189, 192-195, 197, 200, 201; Dec. Dig. § 89.*]

14. Action (§ 42*)—Joindeb of Actions-Right of Joinder.

Where a resident and a nonresident are joint tort-feasors, the injured party may join them in an action in' the state court; for the party aggrieved by the wrong may make it joint or several, at his election.

[Ed. Note.—For other cases, see Action, Cent. Dig. §§ 360-377; Dec. Dig. § 42.*]

15. Railroads (§ 259*)—Lease of Road—Liability of Lessor for Tort of Lessee.

Where a domestic railway corporation leased its road and permitted a physical connection at both ends with other tracks laid by its lessee, it is jointly responsible with the lessee for its torts.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 802-816; Dec. Dig. § 259.*]

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

Action by W. L. Lloyd against the Southern Railway Company and another. From a judgment for plaintiff against the named defendant, it appeals. Affirmed.

This is an action to recover damages for injuries alleged to have been caused by defendant's negligence. The case was before us at a former term, and is reported in 162 N. C. 485, 78 S. E. 489. Several of the questions now presented were then decided adversely to the defendants, and we will not consider them again upon a second appeal. Latham v. Fields, 81 S. E. 410, at this term. We held before that the cause was not removable to the federal court. Defendant, when the case was called for trial, entered a plea to the jurisdiction, based upon the ground that at the former trial the lower court had ordered the case removed, and that, in compliance with said order, a true transcript of the record in the case, properly certified and accompanied by a sufficient bond, had been filed, and the case docketed for trial in the federal court. But it appears that, when the court ordered the removal, an exception to the order was reserved by the plaintiff, who brought the matter to this court for review by appeal, and we reversed the order of re moval, and remanded the case for trial in the court below. The case accordingly proceeded to trial, and resulted in the following verdict:

"(1) Was the plaintiff injured by the negligence of the defendant the Southern Railway Company, as alleged in the complaint? Answer: Yes. (2) Was the plaintiff, at the time of receiving such injury, engaged as an employ^ of the Southern Railway Company in interstate commerce? Answer: Yes. (3) Was the North Carolina Railroad Company, at the time of the alleged injury of plaintiff, engaged in interstate commerce? Answer: No. (4) What damage, if any, is plaintiff entitled to recover of the Southern Railway Company? Answer: $12-500. (5) What damage, if any, is plaintiff entitled to recover of the North Carolina Railroad Company? Answer: Nothing."

Judgment was entered thereon for the plaintiff, and the defendant excepted and appealed.

Wilson & Ferguson, of Greensboro, for appellant.

Brooks, Sapp & Williams, of Greensboro, for appellee.

WALKER, J. (after stating the facts as above). [1] As to the plea of the defendant to the jurisdiction, it may be said that the mere filing of a transcript in the federal court and docketing the case there did not prevent the state court from proceeding with the cause by trial and final determination, in the exercise of its jurisdiction, as the order of removal was held by this court to be erroneous, and was accordingly reversed, with directions to retain the case. The plea, therefore, was properly overruled. Our decision could not be questioned or collaterally attacked in that way, but only by a writ of error to the final judgment. Herrick v. Railroad Co., 158 N. C. 307, 73 S. E. 1008, and cases cited; Crehore v. Railway Co., 131 U. S. 244, 9 Sup. Ct. 682, 33 L. Ed. 144. This court had the right to decide for itself whether the papers presented a...