Lloyd v. Southern Ry. Co.

• Decision Date: 26 May 1914
• Docket Number: 402.
• Parties: LLOYD v. SOUTHERN RY. CO. ET AL.
• Court: North Carolina Supreme Court

81 S.E. 1003

166 N.C. 24

LLOYD v. SOUTHERN RY. CO. ET AL.

No. 402.

Supreme Court of North Carolina

May 26, 1914

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.

In a personal injury action under the federal Employers' Liability Act, the refusal of special issues as to whether the employé was guilty of contributory negligence, what the total damages were, and how much should be deducted for contributory negligence is proper; for, under the act, the jury may consider contributory negligence only in mitigation of damages.

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 removal, 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 employé 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: $12500. (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).

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 S.Ct. 682, 33 L.Ed. 144. This court had the right to decide for itself whether the papers presented a removable case ( Railroad v. Dunn, 122 U.S. 513, 7 S.Ct. 1262, 30 L.Ed. 1159; Stone v. South Carolina, 117 U.S. 432, 6 S.Ct. 799, 29 L.Ed. 962; Herrick's Case, supra), and, having held that they did not, the ruling stands, until reversed in some regular and proper way.

Other questions remain for consideration: (1) Refusal of the court to submit certain issues tendered by the defendants and the adoption of others in their stead. (2) Denial of motion to nonsuit, under the Hinsdale Act, Revisal of 1903, § 539. (3) Refusal to instruct the jury as requested by defendants. (4) Error in the instruction given, as specified in the exception thereto.

The issues tendered by the defendant the Southern Railway Company were as follows:

"(1) Did the plaintiff contribute by his negligence to his own injury, as alleged in the answer? (2) How much is the whole amount of damages sustained by the plaintiff by reason of the injuries received by him? (3) What sum should be deducted from the damages sustained by the plaintiff as the proportion or just share thereof attributable to the negligence of the plaintiff?"

The court properly refused to submit these issues, as contributory negligence was not a defense or bar to the action under the federal Employers' Liability Act, but could be considered only on the inquiry as to the damages. No separate issue was necessary for this purpose. The act expressly provides:

"The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee."

The entire question of contributory negligence is to be considered by the jury in assessing the damages. Thornton on Employers' Liability Act, p. 101, §§ 68, 69. There would be no advantage in a separate issue as to contributory negligence, as an answer to it, one way or another, would not enable us to determine whether the jury had correctly estimated the damages. It is not at all usual to allow a specific issue as to each distinct element of damage, but they are all considered under only one issue. If the court instructs erroneously as to any particular element, it may be reviewed upon proper exception.

There was no error in overruling the motion to nonsuit the plaintiff. The evidence tended to show negligence on the part of the defendant in assigning the plaintiff, as engineer, to operate a defective engine, which he did not know was out of order. Upon a motion of this kind, the evidence is construed most favorably for the plaintiff, and he is entitled to have considered every reasonable inference therefrom. Brittain v. Westhall, 135 N.C. 492, 47 S.E. 616; Freeman v. Brown, 151 N.C. 111, 65 S.E. 743. If the evidence is thus treated, and having regard to what the plaintiff himself testified, we find that he said:

"The proper way to handle the lever of an ash pan, and the safe way, is to go to the side of the engine, on the left side; go to the side of the engine with your face the way the engine was fronting, and stoop down and catch hold of the lever and pull it; that would be the natural way, and that would be the proper way. When you pull the lever up in that way, your body would go with it. I can't say that there was no danger in handling these that way to the person operating it; there is danger to them any way you handle it; there is danger to the person operating it no matter how you handle it, if you take one improperly adjusted; they are universally known to be dangerous if they are not properly adjusted; anybody can tell you that. If properly adjusted, you can handle them any way you want to, and not hurt you."

He further testified that the defect was in the mechanism of the lever entending from the shaft to the damper, and was due to the tightening of the nut on the rod, which caused it to form a spring, and that, when he was examining the ash pan, it flew out and struck him on the forehead, knocking him senseless. The engine had just come from the repair shop, and was presumed to be in good order, though it was his duty, as engineer, to inspect it, and ascertain if it was in serviceable condition for its regular run from Spencer, N. C., to Monroe, Va. He was not aware of any defect in the lever or its attachments, and was only "looking between the ash pan and fire box to see if the grates were intact." If the engine was defective, it was his duty to report it, so that it could be returned to the shop for repairs. He testified:

"A part of my duty on that day would have been to inspect and examine this engine before returning it to the shop. I had to make an inspection before carrying it out, to see that it was in condition to carry out; that was the purpose of the trip, to see if it was in proper condition and make it so. * * * I knew from reputation beforehand, if the lever was not properly adjusted, that it was dangerous; I had never handled one in my life. I had handled engines of that character with levers from June until January. I know I had some engines equipped that way. I don't know whether all of them were, because it was not in my line of business to have anything to do with the damper; that came in the fireman's line and hostler's. I never had to clean fire or assist in doing it; it was my duty to inspect the engine--the machinery of it. It was my duty, and I say in my complaint, to ascertain whether or not that engine was in serviceable condition to go out on that trip; that was the very purpose of taking the engine out at all, was to take it out to see whether it was in serviceable condition. Anything that would be wrong or unserviceable, of course, I would be expected to report, and, if I had not gotten hurt with that damper and had investigated it, it would have been my duty to report it to the foreman to be properly adjusted, which I would have done if I had not been hurt."

It is evident from this statement of his that he did not intend to say that he was to readjust or repair the engine, if found to be out of condition, but merely to inspect, and, if any defect was discovered there, to report it. There was ample evidence of the defective condition of the engine...