Russ v. Atl. Coast Line R. Co

• Citation: 18 S.E.2d 130,220 N.C. 715
• Decision Date: 07 January 1942
• Docket Number: No. 666.,666.
• Court: United States State Supreme Court of North Carolina
• Parties: RUSS . v. ATLANTIC COAST LINE R. CO.

18 S.E.2d 130

220 N.C. 715

RUSS .

v.ATLANTIC COAST LINE R. CO.

No. 666.

Supreme Court of North Carolina.

Jan. 7, 1942.

Appeal from Superior Court, Bladen County; Luther Hamilton, Special Judge.

Action by Nealy Russ against the Atlantic Coast Line Railroad Company for injuries. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Civil action to recover for an alleged negligent injury.

The plaintiff is a resident of Bladen County and was employed at a logging camp near Suffolk, Va. On Saturday evening, September 21, 1940, he went to Suffolk with another fellow, and after staying out all night they started back to camp on Sunday morning, walking down the railroad track of the defendant. Plaintiff testifies: "He (the other fellow) stopped by the side of the road a minute, and I stopped and sat down on the end of a crosstie to wait (for him) and fell asleep". The plaintiff was facing away from the track, "with elbows on knees and head bent forward". Continuing, he says: "It was around nine-thirty or ten o'clock Sunday morning, a perfectly clear day. * * * The track was straight as far as I could see. I was sitting on the end of the track and the train was coming to my right. (Cross examination) I was about a mile and a half or two miles south of Suffolk, out in the country, when the accident happened. * * * I was sitting on the end of one of the crossties. * * * The next thing I knew I was in a hospital in Suffolk, where I stayed 17 days. * * * There was a good foot path along the side of the track. I had been along it before".

Elijah Rhodes testified that he was a passenger in the colored coach of the train that struck the plaintiff; that the whistleblew two or three times, "two or three minutes", prior to the time the train applied its brakes. "About the time the train was blowing I felt the train give a quick stop like it had thrown the brakes on. Then the train stopped quick. * * * The man was lying about the second car away from the engine on the right of way."

There was other evidence tending to show the extent of plaintiff's injury and his good character.

From judgment of nonsuit entered at the close of plaintiff's evidence, he appeals, assigning error.

H. H. Clark and Edward B. Clark, both of Elizabethtown, for appellant.

Thos. W. Davis, of Wilmington, and McLean & Stacy, of Lumberton, for appellee.

STACY, Chief Justice.

The rights and duties of the parties are to be measured by the law of Virginia. Harrison v. Atlantic Coast Line R. R. Co., 168 N.C. 382, 84 S.E. 519. Matters of procedure are controlled by the law of the forum. Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82. In other words, the lex loci furnishes the standard of conduct; the lex fori the method and manner of trial. Clodfelter v. Wells, 212 N.C. 823, 195 S.E. 11. The one is substantive; the other procedural. "The actionable quality of the defendant's conduct in inflicting injury upon the plaintiff must be determined by the law of the place where the injury was done. * * * The law of the forum governs as to matters affecting the remedy", etc. Howard v. Howard, 200 N.C. 574,...