McGraw v. Southern Ry. Co.
| Citation | 184 S.E. 31,209 N.C. 432 |
| Decision Date | 26 February 1936 |
| Docket Number | 738. |
| Parties | McGRAW v. SOUTHERN RY. CO. et al. |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Forsyth County; McElroy, Judge.
Action by J. L. McGraw, administrator of the estate of W. R. Pendry deceased, against the Southern Railway Company and another. Judgment for plaintiff, and defendants appeal.
No error.
See also, 206 N.C. 873, 175 S.E. 286.
This is an action for actionable negligence brought by plaintiff against defendants, alleging damage. The evidence on the part of plaintiff and his contentions are to the effect: That the deceased, W. R. Pendry, was a man of 44 years of age, earning about $225 per month, in good health, and while in the line of duty as an employee of the defendant Southern Railway was killed, due to the negligence of the defendant railway and the defendant F. T. Duggins, the engineer, by being run over by the train upon which he was employed. That the deceased left Winston-Salem on the night of April 16, 1932, as a flagman on the defendant Southern Railway Company's train, and carried out his duties on the said train as it went south to its destination at Mooresville, N.C. That the train left Mooresville, N. C., as No. 52, about 4:10 a. m on the morning of April 17, 1932, and came north to Barber's Junction, reaching there about 4:40 a. m. That the train pulled into the west Y switch at Barber's Junction, set off one car, and left twenty cars to be brought on to Winston-Salem, sitting on the west Y. That the deceased, together with other members of the train crew spent about an hour switching there at Barber's Junction making up the rest of the train to be brought into Winston-Salem, which, after being assembled, consisted of nineteen additional cars; that these cars were backed by the engine into the west Y switch and connected by the deceased, with the original part of the train. That, after the entire train was gotten together, it consisted of an engine, thirty-nine cars, a large number of which were loaded, and a caboose. That the engine was standing about six or eight car lengths west of the Y switch on the Asheville pass track, and the caboose on the rear end was standing just in the clear, off the Mooresville main line, in the south switch of the west Y. That, after the train being so made up, the deceased, in the line of his duties, proceeded toward the rear of the train where, standing on the front end of the cab, he gave the back-up signal, proceeded through the cab to the rear end, and was standing on the rear end, holding on to the signal whistle and on the lookout, protecting the rear of the train. That he was so situated and standing on the rear of the train because his lantern and brake stick were found inside of the cab, where it was his custom to leave them. That the rules of the company required him to so protect the rear end, and a special order had been issued by the superintendent of the Winston-Salem division, especially ordering such a protection of the rear end of every train that backed out of the west Y on to the Mooresville main line. That this position is also supported by the usual custom in force among railroad men in performing a duty of this kind, and by the further fact that, when his body was found, the whistle from the rear end of the train that was there for him to use as a signal in making this movement was found near his body.
Plaintiff contends:
That from all of these facts the indication is that the deceased was, immediately prior to his death, standing on the rear platform, performing his duties in the usual and customary way. That defendant engineer, Duggins, after receiving the signal of the deceased to back the train out of the west Y, started to back the train from the place where it was standing after being made up, and that, when the engine passed the switch of the west Y on the old pass track, where the brakeman, Daniels, was standing, the train had reached a speed in backing of from five to six miles per hour. That immediately after passing the said switch and the brakeman, Daniels, the engineer, Duggins, by the manipulation of the controls on the engine, reduced the speed of said train from five to six miles per hour to one mile per hour, or practically a stop, within two car lengths, and that, in making such a stop, the deceased was thrown from the rear end onto the track. That, after making such a slow-up movement and after throwing the deceased onto the track, the engineer, Duggins, continued to back out of the west Y switch, backed over the deceased, and thereby caused his death.
That such a stopping of the train was negligent and careless. That the train, consisting of an engine, thirty-nine cars, and a caboose, was heavily loaded, carrying a maximum tonnage allowed on that road, backing over a slight hump and down a grade. That it contained approximately twenty feet of slack, and that, under these circumstances, such a slowing up of the train did produce an unusual, violent, and unnecessary jerk on the rear of the train and, furthermore, the kind of jerk that the deceased was not expecting, due to the custom and practice of continuing to back out in this particular movement of the train, and that the action of such stopping on the rear of the train jerked the deceased to the track, and that, in continuing to back, the train ran over the deceased after he was thrown to the track, thereby causing his death. That such an operation of the engine was negligent, in that such a stop under the existing conditions and the immediate continuation of backing the train could only have been produced by the use of the independent brake on the engine. That the effect of the use of such a brake was to apply the brake on the engine only, thereby stopping the engine immediately, with no braking power applied to the cars, which caused a violent run-out of the slack contained in the train and an especially violent run-out of the train due to the track being down grade, and that such an operation of the train produced a sudden, unusual, violent, and unnecessary jerk on the rear of the train, one not anticipated by the deceased, Pendry, who was riding the rear of the train, who, caught unawares by such a stop, without warning and of such a violent nature, was thrown from the rear end to the track where he was run over and killed by the continued backing of the train.
That the stop caused the deceased to be thrown from the rear end of the train and the body of the deceased started dragging along the track at approximately five and one-half rail lengths south of the west Y switch, designated as point B. That these rail lengths carried in length from thirty to thirty-three feet, and one witness testified it was approximately one hundred and seventy-five to two hundred feet south of this switch point. That, figuring the length of the train as it was constituted, after being made up, from a point two car lengths south of the west switch on the west Y designated as point C, that the rear end of the train would have been somewhere between one hundred and sixty and two hundred feet south of the south switch of the west Y, designated as point B at the time the stop was made.
That the death of the deceased was due to the negligence of the defendant Southern Railway Company, in that the said defendant failed to maintain its equipment, and especially the whistle on the rear of the said train, in a safe and usable condition. That the said whistle was constructed of a pipe approximately three-fourths of an inch in diameter, extending through a sill in the rear platform of the cab, and supported in such a manner that it was of almost an immovable character, and used by the deceased and other employees as a handhold to protect them from the movements of the train and used especially when it was their duty to be ready to use the said whistle in back-up movements by blowing the same. That the said equipment and whistle was unsafe and in an unusable and dangerous condition, which condition was known, or should have been known, to the defendant, in that the said whistle was made of a defective pipe of a weak and unsubstantial nature, and that, when the deceased, Pendry, standing on the rear of the cab, experienced a sudden, violent, unusual, and unnecessary jerk caused by the sudden slowing up or stopping of the train, he had hold of the whistle or grabbed hold of the whistle as a handhold. That the said whistle, due to its faulty construction, gave way, and, as a result thereof, the movement of the train threw him to the track, where he was run over and killed. That the death of the deceased was due to the negligence of the defendants, in that, after bringing the train to a stop to pick up the head brakeman, Daniels, and without warning or a signal from the rear of the train, and after the deceased, W. R. Pendry, was thrown from the said train, the defendants continued backing, negligently and carelessly, in violation of rules, and ran over the said Pendry before he could recover from the fall from the rear end of the train, thereby causing his death.
The plaintiff contends:
That from all of this evidence the deceased's death was due to and proximately caused by the negligence of the defendants. That on the third issue the answer should be "No", because that, although the deceased, Pendry, assumed ordinary risks incident to his employment as a flagman by the defendant railroad company, he did not assume the risk of negligence of the railroad company, and that the acts and conduct on the part of the railroad and the defendant Duggins were not such acts as a man of ordinary prudence would assume in accepting any employment. That, on the question of damages, the three issues should be answered for substantial sums.
The...
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