North Carolina Railroad Company v. James Zachary, No. 144

• Court: United States Supreme Court
• Writing for the Court: Pitney
• Citation: 58 L.Ed. 591,232 U.S. 248,34 S.Ct. 305
• Decision Date: 02 February 1914
• Docket Number: No. 144
• Parties: NORTH CAROLINA RAILROAD COMPANY, Plff. in Err., v. JAMES A. ZACHARY, Administrator of Herbert H. Burgess

232 U.S. 248 34 S.Ct. 305 58 L.Ed. 591 NORTH CAROLINA RAILROAD COMPANY, Plff. in Err.,

v.

JAMES A. ZACHARY, Administrator of Herbert H. Burgess.

No. 144. Argued December 17 and 18, 1913. Decided February 2, 1914.

Page 249

Mr. John K. Graves for plaintiff in error.

[Argument of Counsel from pages 249-252 intentionally omitted]

Page 252

Messrs. Thomas H. Calvert, John A. Barringer, and George S. Bradshaw for defendant in error.

[Argument of Counsel from pages 252-254 intentionally omitted]

Page 254

Mr. Justice Pitney delivered the opinion of the court:

This action was brought in the superior court of Guilford county, North Carolina, to recover damages for the negligent killing of Burgess a locomotive fireman in the employ of the Southern Railway Company, lessee of the defendant, which occurred at Selma, North Carolina, on April 29, 1909, Under the local law, as laid down in Logan v. North Carolina R. Co. 116 N. C. 940, 21 S. E. 959, the lessor is responsible for all acts of negligence of its lessee occurring in the conduct of business upon the lessor's road; and this upon the ground that a railroad corporation cannot evade its public duty and responsibility by leasing its road to another corporation, in the absence of a statute expressly exempting it. The responsibility is held to extend to employees of the lessee, injured through the negligence of the latter.

The complaint set forth in substance that plaintiff's intestate, being in the employ of defendant's lessee, and engaged at the Selma switchyards in the discharge of his duties as fireman upon engine No. 862, about 8 o'clock, P. M., on the date mentioned, after inspecting, ciling, firing, and preparing the engine for starting on a trip from Selma to Spencer, North Carolina, attempted to cross certain tracks that intervened between the engine and his

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boarding house, which was located a short distance away; that another engine, No. 716, was standing upon a side track in such position as to shut off intestate's view of the main track; that No. 716 had its blower on, and was making a noise so loud that intestate could not hear a third engine,—No. 1551, the shifting engine used in the yards,—which at this time was running backward at a reckless and dangerous rate of speed, without headlight and without an adequate and competent crew; and that as intestate stepped from the track in the rear of engine No. 716, and was about to step upon the main line in the attempt to cross it, he was struck and killed by the shifting engine. Defendant's answer, besides denying the allegations of negligence, set up as a special defense that at the time plaintiff's intestate was killed, he was engaged in interstate commerce as an employee upon a train of defendant's lessee which was moving from Selma, North Carolina, to Spencer, in the same state, and carrying cars loaded with freight from the state of Virginia to the state of North Carolina and other states; that the liability of the defendant to him or to the plaintiff as his representative was fixed and regulated by the Federal employers' liability act of April 22, 1908 [35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1911, p. 1322], and that under that act the plaintiff was not entitled to recover.

Upon the trial, at the close of plaintiff's evidence, which tended generally to support the averments of the complaint, defendant moved for a nonsuit, and among other grounds assigned the following:—that from the uncontradicted evidence it appeared that at the time of the occurrence in question defendant, through its lessee, was a common carrier by railroad, engaged in interstate commerce, and plaintiff's intestate was at that time a person employed by such carrier in such commerce; that the act of Congress already referred to exclusively regulated the liability of defendant to plaintiff's intestate, and that upon all the evidence plaintiff had failed to make out a

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case of liability under that act. The court, in denying the motion, held that the action was brought under the statute of North Carolina, that the Federal act had no application, and that the cause was triable under the statutes of the state. To this ruling, defendant excepted. At the close of the case, defendant again undertook to invoke the protection of the Federal act by requested instructions to the jury, which were refused and exceptions allowed.

There was a verdict for plaintiff and judgment thereon, followed by an appeal to the supreme court of the state. That court overruled the contention of defendant that the Federal employers' liability act of April 22, 1908, applied, and held that the action was properly tried under the state law. The result was an affirmance (156 N. C. 496, 72 S. E. 858), and the case comes here under § 709, Rev. Stat. U. S. Comp. Stat. 1901, p. 575 (Judicial Code, § 237 [36 Stat. at L. 1156, chap. 231, U. S. Comp. Stat. Supp. 1911, p. 227]).

In order to bring the case within the terms of the Federal act (35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1911, p. 1322, printed in full in 223 U. S. p. 6, 56 L. ed. 329, 38 L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A.875), defendant must have been, at the time of the occurrence in question, engaged as a common carrier in interstate commerce, and plaintiff's intestate must have been employed by said carrier in such commerce. If these facts appeared, the Federal act governed, to the exclusion of the statutes of the state. Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 55, 56 L. ed. 327,...