Parker v. Seaboard Air Line Ry.

• Decision Date: 16 March 1921
• Docket Number: 99.
• Parties: PARKER v. SEABOARD AIR LINE RY. ET AL.
• Court: North Carolina Supreme Court

106 S.E. 755

181 N.C. 95

PARKER v. SEABOARD AIR LINE RY. ET AL.

No. 99.

Supreme Court of North Carolina

March 16, 1921

Appeal from Superior Court, Halifax County; Lyon, Judge.

Action by Jennie S. Parker against the Seaboard Air Line Railway and another. Judgment for plaintiff, and defendants appeal. No error.

Walker and Stacy, JJ., dissenting.

Where sun set at 5:36 p.m., whether it was negligence not to have a light on the advancing end of a backing freight train going over a crossing a few minutes after 6 o'clock, when it was cloudy and drizzling rain, held for the jury.

This action is brought to recover $100,000 damages for personal injuries sustained in a crossing accident at Weldon, N. C February 10, 1920. Action was originally brought against Seaboard Air Line Railway Company and Walker D. Hines Director General of Railroads, but at the trial, by consent of counsel, John Barton Payne, Director General of Railroads as agent, designated by the President under the Transportation Act, was substituted as defendant in lieu of Walker D. Hines.

Plaintiff alleges negligence, in that the defendant's crossing watchman caused the driver of the automobile in which plaintiff was riding as a passenger to be stopped on the railroad track immediately in front of a train moving backward, in the dark, without a light, and without giving any signal, at a greatly frequented crossing in the town of Weldon, and in that the defendant failed to keep a proper lookout at the crossing and failed to have a light at the rear of the train, as required by ordinance of the town of Weldon. Plaintiff suffered the loss of both legs, one above and one below the knee, as the result of the accident.

Defendants based their defense upon three theories of the case: First that there was no negligence on the part of the defendants; second, that the plaintiff was guilty of contributory negligence; and, third, that the negligence of plaintiff's sister, who was driving the car, was the proximate cause of plaintiff's injury.

The jury returned a verdict for $45,000, and defendants appealed.

Geo. C. Green, of Weldon, R. C. Dunn, of Enfield, and Murray Allen, of Raleigh, for appellants.

Travis & Travis, of Savannah, Ga., Ashby Dunn, of Scotland Neck, and Daniel & Daniel, for appellee.

CLARK C.J.

The plaintiff was riding as a passenger in an automobile, and on February 10, 1920, at a greatly frequented crossing, a little after 6 p. m., the automobile was struck by the rear car of a backing train. It was a drizzly, rainy evening and in the automobile besides the driver, Mrs. Scott, there were the plaintiff, seated on the front seat to the right of the driver, four young ladies, and Mrs. Scott's son, when it reached the crossing in front of the Terminal Hotel, in Weldon. At that point, where the defendant's railroad crosses the street there are four tracks which converge until the street which is the First street in the town (and on which the party was traveling) intersects Walnut street. Beyond the crossing the railroad and First street, extended, are almost parallel with each other, going west, the direction in which the automobile was moving. Before the intersection of said First street and the railroad the angle is very acute, and the railroad was to the right of the street, getting nearer and nearer until the crossing is reached.

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The rear of the car had the curtains in place, but on the front seat, where the plaintiff sat, there were no curtains; she being on the right and the driver, Mrs. Scott, to the left. The evidence is that the car was being driven along the street slowly and came almost to a standstill, and the evidence is that both Mrs. Scott and Mrs. Parker looked across the tracks and up and down the tracks, and both testified that they were clear. As they drove along First street, going west towards the crossing, which is just in front of the hotel, the plaintiff testified she saw some freight cars standing still at the right some 400 feet, near the Union Station. Just prior to the approach of the automobile to the crossing, a freight train of 19 cars had come from the direction of Roanoke Rapids to Weldon, and had pulled up across this crossing and then had gone on in the direction of the Union Station and had passed the switch between the crossing and the Union Station preparatory to backing into another track, and these cars were standing still, according to the plaintiff's testimony, near the Union Station. As the automobile slowly approached the crossing these cars commenced backing towards the crossing slowly, without a light or any one upon the advancing train to give warning.

The evidence is that the conductor had gone into the yard office to report the train and sent out one of his brakemen, who reached the train too late. The engineer was at the other end of the 19 cars down towards the river beyond Union Station, and knew nothing of the collision until he had put his train away. One of the brakemen, who was on the other side of the train at the switch, could not see the automobile, and the other brakeman was about halfway the train and knew nothing about what was happening. According to the evidence, this was the situation as the automobile approached the crossing, which, it is testified, was clear. The defendant had provided a flagman or crossing master at that point. He had formerly worked in the express office, but on account of his age and infirmities the company had retired him, and the defendant had then employed and stationed him at this point. The evidence was that he was old and infirm, and that at this crossing more vehicles passed in a day than at any other crossing in the county.

The evidence is that just as the automobile started across the track this agent appeared and cried, "Stop! stop! stop! jump! jump! jump!" Mrs. Parker, who was on the right and nearest the car on the backing train, started to open the door and attempted to get out. One foot was on the ground and one on the running board, when the forward car, moving slowly and noiselessly, struck her on the shoulder, knocked her down, ran over and crushed one of her legs just above the knee; and then the train, for some unexplained reason, moving back, cut off the other leg between the ankle and the knee; her shoulder was also broken. The automobile was struck just in rear of the front wheel and pushed around. The front door was battered and the front fender bent. One of the young ladies was thrown over the head of another who was trying to leave the car.

The plaintiff was 44 years of age, and her normal weight before injury was 223 pounds. There was testimony as to her injuries and sufferings by physicians and others.

There is evidence that the sun set February 10, 1920, at 5:36 p. m. This was not a scheduled train, and the crossing master who gave the order to jump was not examined as a witness.

Both defendants assign as errors that the court refused to set the verdict aside because it was against the weight of the evidence and because the damages were excessive, but these are matters that are not reviewable on appeal. Edwards v. Phifer, 120 N.C. 405, 27 S.E. 79, and citations in Anno. Ed.; Trust Co. v. Ellen, 163 N.C. 47, 79 S.E. 263; Boney v. Railroad, 145 N.C. 255, 58 S.E. 1082, in Anno. Ed.; Cook v. Hospital, 168 N.C. 256, 84 S.E. 352, L. R. A. 1915D, 611, Ann. Cas. 1917C, 158.

The defendant railroad company and the Director General, John Barton Payne, filed separate answers, and the railroad company seeks to avoid liability on the ground that it was being operated by the government.

The act of Congress to provide for the termination of the federal control of railroads, approved February 28, 1920 (section 206a [41 Stat. 461]), provides that actions at law "of such character as prior to federal control could have been brought against such carrier may, after the termination of federal control, be brought against an agent designated by the President," and "such actions * * * may * * * be brought in any court which but for federal control would have jurisdiction of the cause of action had it arisen against such carrier." Another subsection provides that final judgment shall be promptly paid out of the revolving fund created by section 210 of said act.

This exception need not be again discussed, as it has been fully considered, and we have repeatedly decided that both the Director General and the corporation itself are proper parties in such actions as this. Clements v. Railroad and Hines, Director General, 179 N.C. 225, 102 S.E. 399; Hill v. Director General, 178 N.C. 609, 101 S.E. 376, citing numerous cases. The above have been reviewed and reaffirmed since in Gilliam v. Railroad, 179 N.C. 508, 103 S.E. 10; Vann v. Railroad, 180 N.C. 659, 104 S.E. 170; McGovern v. Railroad, 180 N.C. 219, 104 S.E. 534.

The plaintiff rests her case largely upon the ground that it was dark, and the ordinances of Weldon required that there should be a "light at the rear end of the train and front end of the train at night," and, even if it was not night or not dark, the defendant failed to give timely warning, and there was evidence that there was no light at the end of train and no notice given of the approach of the train except the warning to jump given by the defendant's crossing master, which contributed, it would seem, if it did not cause, the injury to the plaintiff. In any event, the running of the train backward without a light, signal, or other warning of its approach was negligence. Shepherd v. Railroad, 163 N.C. 518, 79 S.E. 968, quoting numerous cases, among them Purnell v. Railroad, 122 N.C. 832, 29 S.E. 953, in which the plaintiff's intestate was killed by a backing train in the same town of Weldon and at a short...