Moore v. Dir. Gen. Of R.R.S *, (No. 594.)

Docket Nº(No. 594.)
Citation103 S.E. 444
Case DateJune 02, 1920
CourtUnited States State Supreme Court of North Carolina

103 S.E. 444

MOORE.
v.
DIRECTOR GENERAL OF RAILROADS et al.*

(No. 594.)

Supreme Court of North Carolina.

June 2, 1920.


Walker and Brown, JJ., dissenting.

Appeal from Superior Court, Haywood

County; Bryson, Judge.

Action by Mrs. B. M. Moore against the Director General of Railroads and others. Judgment for plaintiff, and defendant Director General excepts and appeals. No error.

Civil action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) to recover damages for alleged negligent killing of plaintiff's intestate.

Plaintiff alleged and claimed that on July 28, 1918, her intestate, an employe of the railroad company, under charge and control of defendant, was negligently run over and killed by the kicking or shunting of cars onto the track on or near which the intestate was standing at the time.

There was denial of liability by defendant, plea of contributory negligence, and assumption of risk, etc. The proof showed that the intestate left him surviving his widow, the present plaintiff, and two infant children, a girl Vernell Moore, three to four years of age, and a boy, Maurice or Morris Moore, aged one month or over, dependent on intestate within the meaning of the statute, and on this and further evidence offered the jury rendered the following verdict:

"(1) Was the plaintiff's intestate killed by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

"(2) Did the plaintiff's intestate, by his own

[103 S.E. 445]

negligence, contribute to his death, as alleged in the answer? Answer: Yes.

"(3) Did the plaintiff's intestate assume the risk of being killed in the way and manner he was killed? Answer: No.

"(4) What damage, if any, is plaintiff entitled to recover for herself, as the widow of her intestate? Answer: $1,000.

"(5) What damage, if any, is plaintiff entitled to recover for the infant, Vernell Moore? Answer: $2,000.

"(6) What damage, if any, is plaintiff entitled to recover for the infant, Morris Moore? Answer: $2,000."

Judgment for the aggregate amount on this verdict for plaintiff, and defendant excepted and appealed, assigning errors.

Martin, Rollins & Wright, of Asheville, for appellant.

T. A. Clark, of Canton, and Felix E. Alley, of Waynesville, for appellee.

HOKE, J. On the argument before us defendant's counsel rested their right to a new trial upon the two objections: First, that the question of damages was submitted on separate issues as to each of the dependents; second, that on the entire testimony defendant's motion for nonsuit should have been allowed.

In reference to the first position, it has been recently held with us in two or more cases where the question was directly considered that, under the Employers' Liability Act and the authoritative federal decisions construing the same, the award of damages might be properly assessed upon separate issues. Hudson v. Railroad, 176 N. C. 488, 97 S. E. 388; Horton v. Railroad, 175 N. C. 472-477, 95 S. E. 883.

In Horton v. Railroad the court, in approving a verdict similar in form to that rendered in the instant case, said:

"Under the state statute the jury assesses the value of the life of the decedent in solido, which is disbursed under the statute of distributions. Under the United States statute the jury must find as to each plaintiff what pecuniary benefit each plaintiff had reason to expect from the continued life of the deceased, and the recovery must be limited to compensation of those relatives in the proper class who are shown to have sustained such pecuniary loss. Railroad v. Vreeland, 227 U. S. 59; Railroad v. Didricksen, Id., 145; Railroad v. McGinnis, 228 U. S. 173; Railroad v. Zachary, 232 U. S. 248. In the latter case the court said: 'The statutory action of an administrator is not for the equal benefit of each of the surviving relatives for whose benefit the suit is brought. Though the judgment may be for a gross amount, the interest of each beneficiary must be measured by his or her individual pecuniary loss. That apportionment is for the jury to return. This, of course, excludes any recovery in behalf of such as show no pecuniary loss.'

"This was not overruled in Railroad v. White, 238 U. S. 507. In the latter case the defendant did not ask to have the damages apportioned by the jury, but moved for arrest of judgment after the verdict was rendered because the verdict was a general one. The court merely held that the verdict was not void because not apportioned, and that the apportionment was no concern to the defendant, who cannot be heard if it did not except on the trial. None the less the plaintiff has a right, as in this case, to have the jury apportion the recoveries."

Under the federal decisions referred to in this excerpt, even if the question of damages had been submitted on a single issue, as defendant desired, the estimate of the amount would have been determined according to the rule or principle expressed in these separate issues, and to our minds the exception presents no substantial objection to the validity of the trial.

As to the second objection, it is the rule prevailing in both state and federal procedure that on a motion for involuntary nonsuit, equivalent with us to a demurrer to the evidence, the facts presented which make in favor of plaintiff's claim must be accepted as true and interpreted in the light most favorable to him. Lamb v. Railroad, 103 S. E. 440, at the present term, citing, among other authorities, Aman v. Rowland Lumber Co., 160 N. C. 369, 75 S. E. 931; Biles v. Railroad, 143 N. C. 78, 55 S. E. 512; Chinoweth v. Haskell, 3 Pet. 92, 7 L. Ed. 614; Pawling v. U. S., 4 Cranch, 219, 2 L. Ed. 601.

Considering the record in view of this principle, there were facts in evidence on the part of plaintiff tending to show that intestate at the time of his death was a member of a switching crew engaged at the time in shifting cars on the railroad yards at Canton, N. C, under the control and direction of the yardmaster, Jesse Harrison; that at this station there was the main railroad track running east and west and just south of this and parallel was a siding known as the house track for the use and occupation of cars hauling general freight.

North of the main track were a number of sidings principally for cars hauling freight, etc., for the Champion Fiber Company, arranged and numbered as follows: Some distance west of the station there was a lead track, switched off from the main track and running clear through the company yard, for the greater part some distance from the main track, but substantially parallel to it, and from this lead track several sidings ran out into the yard between the lead and main tracks, numbered from the main track 1, 2, 3, 4, No. 4 being the one nearest the lead track.

At the time of the occurrence the switching engine ran from the lead track onto track No. 4 and was connected with a train of 8 or 9 cars thereon, and, on signal given, drew these cars out onto the main lead track, the train so constituted being long enough to extend past the switch of this lead track and in

[103 S.E. 446]

part onto the main line. On further signal given, the train was started back, and, the four rear cars having been detached on attaining sufficient speed, the engine slowed down, leaving these four rear cars of their own momentum to pass down onto the main lead track, at or hear which the intestate was then standing, and was by them run over and injured so that he soon thereafter died.

The evidence showed that the four or five forward cars of the train were to be switched over to the house track, but that the rear cars holding coal for the Champion Fiber Company were thus kicked or shoved down on the main lead track to be run to the coal shute of the Fiber Company further down on the yard.

There was no bell rung nor signal given when this train was started back after being pulled out of track 4, and no one was on the cars at the time to control them or to signal to any one who might have been on the main lead track.

The yardmaster at the precise time of the killing was not immediately present, but had gone 100 feet or more over toward the house track to run a child off from that track, where four of these cars were to be presently placed, and intestate at the time, standing on or near the main lead track, was looking at the yardmaster engaged as stated.

There was no proof offered that the yard-master had informed the crew or any of them where these four coal cars were to be placed, except by marking them with chalk on the side "2x2 Champion Fiber Co., " the testimony leaving it uncertain whether the intestate knew of this marking or what it signified.

There were facts in evidence also tending to show that at the time of the occurrence or immediately thereafter some of the crew, including the yardmaster, asked the intestate while he was still conscious how it happened, and he replied that he did not expect them to back on the main lead track or that the train had backed on the wrong track. It was further shown, or there was evidence tending to show, that it was the custom to leave the Fiber Company cars on track No. 4 till they were to be run into the company yards to deliver their contents, and, if these ears had been backed onto track No. 4, they would not have struck the intestate, and further that, while this yard on the north of the main track was used chiefly for the company's business, it was not in fact a closed yard, but there were tracks or trails along or across the same, near to the place of the killing, not infrequently used by employes and others, and plaintiff also put in evidence three rules of the company:

Rule 783, defining the duties of the yard-master in terms as follows:

"They have charge of their respective yards and of the making up and distribution of trains and the handling of cars therein and of all yard employes and engine men and train men while in the yard limits."

And rule 393:

"They must not allow running or flying...

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6 practice notes
  • Hamilton v. Southern Ry. Co, No. 249.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 1, 1931
    ...the defendant Seaboard duly excepted and assigned error. C. S. § 567. In Moore v. General Directors of Railroads, 179 N. C. at page 639, 103 S. E. 444, 445, we find: "It is the rule prevailing in[158 S.E. 80]both state and federal procedure that on a motion for involuntary nonsuit,-equivale......
  • Lamb v. Atl. Coast Line R. Co, (No. 308.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 2, 1920
    ...56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Grybowski v. Erie R. Co., 88 N. J. Law, 1, 95 Atl. 764; Richey on Fed. Emp. Liability Act, § 59.[103 S.E. 444] We were also referred by defendant to Patton v. Railway, 179 U. S. 650, 21 Sup. Ct. 275, 45 L. Ed. 361, as an authority against plaintiff's r......
  • Strunks v. Payne, (No. 389.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 13, 1922
    ...three of them rolling down the grade. This was the initial cause of this occurrence, and was negligence. Moore v. R. R., 179 N. C. 641, 103 S. E. 444. Notwithstanding the defendant had a rule forbidding the use of brake sticks by brakemen, it was in evidence that this rule had been disregar......
  • Strunks v. Southern Ry, (No. 386.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 20, 1924
    ...1433, Ann. Cas. 1916B, 252; Horton v. Railroad. 175 N. C. 472, 488, 95 S. E. 883; Moore v. Director General of Railroads, 179 N. C. 637, 103 S. E. 444. On appeal a new trial was awarded as to the four issues relating to damages, but not as to the others. The case was tried the second time i......
  • Request a trial to view additional results
6 cases
  • Hamilton v. Southern Ry. Co, No. 249.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 1, 1931
    ...the defendant Seaboard duly excepted and assigned error. C. S. § 567. In Moore v. General Directors of Railroads, 179 N. C. at page 639, 103 S. E. 444, 445, we find: "It is the rule prevailing in[158 S.E. 80]both state and federal procedure that on a motion for involuntary nonsuit,-equivale......
  • Lamb v. Atl. Coast Line R. Co, (No. 308.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 2, 1920
    ...56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Grybowski v. Erie R. Co., 88 N. J. Law, 1, 95 Atl. 764; Richey on Fed. Emp. Liability Act, § 59.[103 S.E. 444] We were also referred by defendant to Patton v. Railway, 179 U. S. 650, 21 Sup. Ct. 275, 45 L. Ed. 361, as an authority against plaintiff's r......
  • Strunks v. Payne, (No. 389.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 13, 1922
    ...three of them rolling down the grade. This was the initial cause of this occurrence, and was negligence. Moore v. R. R., 179 N. C. 641, 103 S. E. 444. Notwithstanding the defendant had a rule forbidding the use of brake sticks by brakemen, it was in evidence that this rule had been disregar......
  • Strunks v. Southern Ry, (No. 386.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 20, 1924
    ...1433, Ann. Cas. 1916B, 252; Horton v. Railroad. 175 N. C. 472, 488, 95 S. E. 883; Moore v. Director General of Railroads, 179 N. C. 637, 103 S. E. 444. On appeal a new trial was awarded as to the four issues relating to damages, but not as to the others. The case was tried the second time i......
  • Request a trial to view additional results

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