Saunders v. Southern Ry. Co.

• Decision Date: 25 November 1914
• Docket Number: 316.
• Citation: 83 S.E. 573,167 N.C. 375
• Parties: SAUNDERS v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

83 S.E. 573

167 N.C. 375

SAUNDERS v. SOUTHERN RY. CO.

No. 316.

Supreme Court of North Carolina

November 25, 1914

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

Action by B. B. Saunders, administrator of Kemp Saunders, deceased against the Southern Railway Company. Judgment for plaintiff and defendant appeals. No error.

A railroad company and a traveler on a highway approaching a crossing are charged with a mutual duty of keeping a careful look out for danger, and the degree of vigilance is in proportion to the known danger.

This is an action under the federal Employers' Liability Act, to recover damages, for the alleged negligent killing of Kemp Saunders, who was struck by a south-bound freight train, in the yards at Thomasville, while crossing the south-bound main line returning to the camp train to the crew of which he belonged. Saunders was employed by the defendant as a member of a crew engaged in erecting an electric block signal system for the defendant from Salisbury, N. C., to Denim, N. C., in place of another system then in use. The work this crew was doing was planting poles near the track and stringing wires thereon. At the time in question, the work had progressed as far as Thomasville, at which point in the outskirts of the town the train on which the crew slept and ate camped. On the morning of August 17, 1912, between 6:30 and 7 o'clock a m., the work train left the camp, moving on the north-bound main line to a point just south of the passenger station, from which point it was to proceed in a short while to the place where they were working at, or about, the northern outskirts of the town of Thomasville. At the point where the work train stopped there are four tracks, viz.: The north-bound main line, on which the camp train stood, the south-bound main line, a side track, and another track called the delivery track, next to the freight depot. When the camp train stopped near the passenger station, Saunders, together with a fellow workman, Thornbro, and according to some of the witnesses, with another fellow workman, whose name was not recalled, left the camp train, passed over the railroad main line and the two side tracks, and went between some box cars standing next to the freight depot. While returning from the point to get aboard his own train which began moving out just as, or shortly after he had left the box cars, and while in the act of crossing the south-bound main line, he was struck and killed by a south-bound freight train.

G. D. Cloer, a witness for plaintiff, testified as follows:

"I live at Statesville and work in furniture factory there. I was working for Southern Railway Company on the block signal line at Thomasville at the time of the death of Mr. Saunders. I had been working there about three weeks, and had become acquainted with Saunders. He was there when I went there. This construction force was called the block signal gang. I do not know how long Saunders had been there when I went there. We spent the nights in a car of the Southern Railway Company. I saw Saunders on the morning he was killed; it was at breakfast, about 6:30. The cars were at the orphanage grounds at Thomasville. The cars were moved up to Thomasville over the north-bound main line and stopped south of the station. I was sitting in the car door on the left-hand side. I saw Saunders after the car stopped; he had gotten off and gone across the south-bound track and was coming back when I saw him. There are four tracks at this point. He was over about the box car, I think. I do not know what he was doing. He was coming back from the car when I saw him. I think he relieved his bladder. He was between two box cars, the box cars were standing on the side track near the loading place near the depot and on the side track across the main line. There were no toilet facilities provided on our train. Our train had not started in motion when I saw him back--it started just about the time he got near the south-bound track. Our train was going north, moving slowly, and Saunders was going in the direction of our train. He was crossing the south-bound track and had stepped one foot over the last rail when the train hit him. It was a south-bound freight train that hit him. I would judge it was running 20 or 25 miles an hour. I did not hear the freight train blow any whistle or ring any bell. I was on the side of the car next to the freight train. I do not know what part of Saunders' body the train struck. I did not see him after the train hit him. He kind of had his back to the train. He was something like three or four feet from our train when he was hit. Our train was on the north-bound track going north, and the train that struck him was on the south-bound track going south. I know where two street crossings are, and Saunders was something like 30 or 40 yards from the north street crossing when the train struck him. I was sitting in the third or fourth car of our train. Saunders was right across the railroad right opposite me when the train struck him. I do not know how many cars in our train or how many there were in the through freight that was passing. It looked like it was going at full speed through Thomasville. It is built on both sides of the track and near the hotel."

There was other evidence to the same effect.

The rules of the defendant were introduced.

The jury returned the following verdict:

"1. Was the plaintiff's intestate killed by the negligence of the Southern Railway Company as alleged in the complaint? Answer: Yes.

2. Did plaintiff's intestate, by his own negligence, contribute to his own death? Answer: Yes.

3. What damages, if any, is plaintiff's administrator entitled to recover of the defendant? Answer: $3,500."

Judgment was rendered in favor of the plaintiff, and the defendant appealed.

Wm. D. Merritt, of Roxboro, and Manly, Hendren & Womble, of Winston-Salem, for appellant.

Bryant & Brogden, of Durham, and Manning & Kitchin, of Raleigh, for appellee.

ALLEN J.

Three questions are presented by the appeal.

1. Was the intestate of the plaintiff employed in interstate commerce at the time of his death? He was an employé of the defendant engaged in installing a new and improved block system along the track of the defendant in place of another system already in use, and at the time of his death was returning to his work train, from which he had been absent for a necessary purpose only a few minutes, and it is admitted that the defendant was engaged in interstate commerce over said track. Upon these facts two recent decisions of the Supreme Court of the United States ( Railroad v. Zackary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591, Ann. Cas. 1914C, 159, and Pedersen v. Railroad, 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153), which were approved in Railroad v. Behrens, 233 U.S. 473, 34 S.Ct. 646, 58 L.Ed. 1051, Ann. Cas. 1914C, 163, compel us to answer the question in the affirmative.

In the Zackary Case it was held that a fireman, who had prepared his engine for its run in interstate commerce, and was temporarily absent going to his boarding house, was "still 'on duty,' and employed in commerce, notwithstanding his temporary absence from the locomotive," and in the Pedersen Case that an employé was employed in interstate commerce who was carrying a sack of bolts or rivets to be used in repairing a bridge, which was regularly used in interstate and intrastate commerce. In the last case the court says:

"That the defendant was engaged in interstate commerce is conceded, and so we are only concerned with the nature of the work in which the plaintiff was employed at the time of his injury. Among the questions which naturally arise in this connection are these: Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars, and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition, and efficiency of the commerce depends in large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct 'any defect or insufficiency * * * in its cars, engines, appliances, machinery, track,

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