Norfolk Southern Railroad Company v. Walter Ferebee

• Decision Date: 14 June 1915
• Docket Number: No. 779,779
• Citation: 238 U.S. 269,59 L.Ed. 1303,35 S.Ct. 781
• Parties: NORFOLK SOUTHERN RAILROAD COMPANY, Plff. in Err., v. WALTER G. FEREBEE
• Court: U.S. Supreme Court

238 U.S. 269

35 S.Ct. 781

59 L.Ed. 1303

NORFOLK SOUTHERN RAILROAD COMPANY, Plff. in Err.,

v WALTER G. FEREBEE.

No. 779.

Argued April 23, 1915.

Decided June 14, 1915.

Messrs. Murray Allen, R. N. Simms, John H. Small, and W. B. Rodman for plaintiff in error.

[Argument of Counsel from page 270 intentionally omitted] Messrs. Clyde A. Douglass and William C. Douglass for defendant in error.

Mr. Justice Lamar delivered the opinion of the court:

Ferebee was employed by the Norfolk Southern Railroad Company as a train hand on a passenger train running from Raleigh, North Carolina, to Norfolk, Virginia. During the night, at some place on the journey, the steps to the platform of one of the cars were torn away by coming in contact with some unknown obstruction. The consequence was that when Ferebee attempted to alight at a station, he stepped from the platform to the ground, and received personal injuries for which he brought suit in the superior court of Wake county, North Carolina, under the Federal employers' liability act (35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, § 8657). The company defended on the ground that the plaintiff had been guilty of contributory negligence in attempting to leave the car while it was in motion; in failing to hold on to the hand rail; in failing to use his lantern; and in failing to discover that the steps were missing. There was a trial in which, under the North Carolina practice, the jury returned a special verdict, finding, among other things, (1) that the railroad company was negligent, and (2) that the plaintiff was not guilty of contributory negligence. The case was then taken to the supreme court of the state, which, because of an error in the charge on the subject of damages, granted a partial new trial and remanded the case for a hearing in which the only question to be considered was the amount to be awarded the plaintiff. 163 N. C. 351, 52 L.R.A.(N.S.) 1114, 79 S. E. 685.

At the second trial the plaintiff, on crossexamination, testified that when he left the car for the purpose of assisting passengers, he had in his hand a railroad lantern, and by holding it beneath the platform and 'making an examination like a car inspector' he could have been that the steps had been torn away. He testified that he made no such examination, and owing to the construction of the lantern—throwing light from the side instead of from the bottom—he did not see that they were missing. On motion of the plaintiff this evidence was excluded. Later the objection was withdrawn and the testimony admitted. On further cross-examination the plaintiff was asked if the rules did not require him to make such examinations. This evidence was excluded on the ground, among others, as stated in the argument here, that the rules themselves were the best evidence. The court refused to submit to the jury the question as to how much should be deducted from the damages sustained because of the plaintiff's contributory negligence, for the reason that the supreme court of North Carolina had granted a new trial to assess damages, and had thereby excluded the issue of contributory negligence from the case.

The jury found for the plaintiff—the amount being somewhat larger than that named in the first verdict. The judgment thereon was affirmed. 167 N. C. 290, 83 S. E. 360. The company then brought the case here by writ of error, in which it contends that it was error for the supreme court to grant a partial new trial in which the question of damages only could be considered, inasmuch as the employers' liability act entitles the defendant in all cases to prove contributory negligence in mitigation of damages. On the other...