Marcom v. Raleigh & A. Air-line R. Co

• Decision Date: 20 March 1900
• Citation: 35 S.E. 423,126 N.C. 200
• Court: North Carolina Supreme Court
• Parties: MARCOM v. RALEIGH & A. AIR-LINE R. CO.

35 S.E. 423

126 N.C. 200

MARCOM

v.RALEIGH & A. AIR-LINE R. CO.

Supreme Court of North Carolina.

March 20, 1900.

master and servant—railroads—death op fireman — negligence — defective track—malicious act of trespasser-trial—evidence—burden of proof—instructions.

1. Where, in an action for the death of a railroad employe, caused by a defect in the track, the jury evidently found that the defect was the malicious act of some third person, the exclusion of evidence that one not a railroad man, by going over the road and examining the ties, could have ascertained whether any of them were rotten, while error, is without prejudice, as it could not have affected the result.

2. A cause will not be reversed because someparts of the court's charge are too indefinite, when considered alone, if the charge, taken as a whole, fairly and correctly presents the contention of the party complaining.

3. A railroad company is not liable for the death of a fireman, resulting from a defect in its track caused by the wanton and malicious act of a trespasser, unless it could have prevented the consequences thereof by the exercise of reasonable diligence.

4. Where a railroad company admitted in its answer in an action for the wrongful death of a fireman that such death was caused by the unsafe condition of its track, the burden of proof shifted to it to establish its contention that the accident was caused by the malicious act of a trespasser, for whom it was not responsible, and that the consequences of such act could not have been prevented by the exercise of reasonable care.

Appeal from superior court, Wake county; Moore, Judge.

Action by J. C. Marcom, administrator, against the Raleigh & Augusta Air-Line Railroad Company for damages for the death of his Intestate. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Armistead Jones and Womack & Hayes, for appellant.

J. B. Batchelor and W. H. Day, for appellee.

DOUGLAS, J. This is an action brought by the administrator to recover damages for the death of his intestate, alleged to have occurred through the negligence of the defendant. The deceased was a fireman on defendant's engine, which left the track, resulting in his death. The defendant contended that the accident did not occur through its own negligence, but was the direct result of the malicious act of some outside party, in pulling out the spikes and pressing in the end of the forward rail, thus making what is called In railroad parlance a "jack switch." The effect of such a switch is to cause the wheels on one side of the engine to run off the open end of the rear rail upon the ties, and, as the flange is on the inside of the wheel, to eventually force the engine clear off the rails. Defendant further contended that it was in no way responsible for such malicious act, and could not have prevented its consequences by any reasonable diligence. This view was evidently taken by the jury, who found for the defendant, and...