Morrow v. Southern Ry. Co.
| Decision Date | 02 March 1938 |
| Docket Number | 23. |
| Citation | 195 S.E. 383,213 N.C. 127 |
| Parties | MORROW et al. v. SOUTHERN RY. CO. et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Swain County; H. Hoyle Sink, Judge.
Action by Carl Morrow and Itasca Morrow, by their next friend, J. W Morrow, against the Southern Railway Company and another to recover for the wrongful and tortious mutilation of the dead body of the plaintiffs' father. From a judgment in favor of the plaintiffs as against the named defendant, the named defendant appeals.
Judgment reversed, and judgment entered dismissing action as to named defendant.
A railroad engineer is not under duty to stop his train whenever he sees any object on the track.
This is a civil action instituted to recover damages for the wrongful and tortious mutilation of the dead body of the father of the infant plaintiffs. The corporate defendant operates a train in the evenings from Asheville to Bryson City, which train passes Governors Island Flag Station about 7:00 o'clock p. m. The train makes a return trip in the mornings, leaving Bryson City about 8:00 o'clock a. m. The defendant Frank Cline is the engineer operating said train as the agent and employee of the corporate defendant. In the mornings the train passes Governors Island Station at about 8:20 a. m. On the morning of November 11, 1934, this train passed the point at which the body of the deceased was found, stopped, and backed back near the point, and the employees of the defendant company and others got off and discovered parts of the remains of the deceased. The train then proceeded to the next station, stopped, and then proceeded on its run. Shortly thereafter the coroner was called from the station and he and others went to the scene. The body was badly mutilated. The head, one arm, and shoulder were found in the weeds near the track. This part of the body had frost on it. The heart lungs, small particles of flesh, and the torso were found scattered along the track over a distance of 150 to 200 feet in between the rails. The torso also had frost on it. There was very little blood. The witnesses testified that the torso looked like it had been wadded up or chewed up; that it looked like a "tow sack." The body was found about midway of a 600-yard straightaway. At the conclusion of the plaintiffs' evidence the defendants moved for judgment as of nonsuit. The motion was allowed as to the defendant Frank Cline and denied as to the Southern Railway Company, and the said defendant excepted. The defendant having offered no evidence, issues were submitted to and answered by the jury in favor of the plaintiffs. From judgment thereon, the defendant Southern Railway Company appealed.
W. T Joyner, of Raleigh, and Jones, Ward & Jones, of Asheville, for appellant.
T. D. Bryson, of Durham, and T. D. Bryson, Jr., and Edwards & Leatherwood, all of Bryson City, for appellees.
At the time of the death of Robert Morrow, father of the infant plaintiffs, he was divorced. The cause of action, if any, relied upon by the plaintiffs, therefore, rests in the plaintiffs, his only next of kin. It does not appear from the record, and the plaintiffs do not contend, that there is any sufficient evidence tending to show that the train of the defendant company killed the deceased, and this is not an action for wrongful death. All the evidence tended to show that at the time the body was discovered on the morning of November 11, 1934, the deceased had been dead twelve to sixteen hours. If the deceased was killed by a train of the defendant, it is apparent that he was killed by the train passing the point on the evening of November 10.
It is a well-established principle of law that mutilation, which accompanies a killing, does not give rise to a cause of action. Such mutilation as occurred at the time the deceased was killed...
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