Sellars v. Richmond & Danville R.R. Co.

• Decision Date: 28 February 1886
• Court: North Carolina Supreme Court
• Parties: E. J. SELLARS, Administrator, v. THE RICHMOND & DANVILLE RAILROAD COMPANY.

94 N.C. 654

E. J. SELLARS, Administrator,

v.THE RICHMOND & DANVILLE RAILROAD COMPANY.

Supreme Court of North Carolina.

February Term, 1886.

OPINION TEXT STARTS HERE

CIVIL ACTION, tried before Shipp, Judge, and a jury, at Fall Term, 1884, of the Superior Court of MECKLENBURG county.

The plaintiff's intestate, in the service of the defendant company as fireman, on the night of December 5th, 1882, was in that capacity, on one of its trains running towards Spartanburg, in South Carolina, at a speed of twenty miles an hour, when, about a mile and a half distant from that place, it came in contact with two loaded flat cars, with such violence, as to shatter the engine, and so injure the intestate, that he died a week afterwards at his home in Charlotte. The track from this point to Spartanburg, ascends a grade of sixty or seventy feet to the mile, until reaching the depot, it finds a level of one hundred and fifty feet or more. Some two hundred yards before reaching the depot, the defendant's track is intersected by, and connected with that of the Spartanburg, Union and Columbia Railroad Company, which we shall for brevity designate by the word “Columbia,” and thence to the depot, the road is used by both. At the junction, a safety switch was placed and maintained by the latter, for its own convenience, of such construction, that it never interfered with the running of the trains of the defendant, and was temporarily displaced by the Columbia company, to admit the passage of its cars on the defendant's track, when necessary. No switch tender was required for re-adjustment, and the presence of a watchman dispensed with, to prevent derailment from its displacement.

The ascent from the switch on the Columbia track towards Main street, was still steeper, and for half a mile was at a grade of about ninety feet to the mile. The switch has long been in use, and no inconvenience has resulted to the operations of the defendant company.

The two loaded lumber cars had been brought to Spartanburg by the defendant, and there placed in charge of officers and agents of the Columbia Company, for transportation over a portion of its road, and were removed on it, some distance from the junction, so that the defendant's employès had no longer any control over them. The engineer and servants of the Columbia company, being in exclusive possession of these cars, and two others of its own, found the power of the engine insufficient to move the four cars, forming a single train, further up the steep acclivity of their road, detached the former two, and blocked their wheels to keep them stationary, until the other two cars could be drawn up. In order to exert the moving force of the engine to its fullest capacity, and make a fresh start, the slack had to be taken up by backing, in doing which the chocked cars were struck, the props behind their wheels displaced, and they commenced their downward descent towards the switch, passing which they ascended the slope of the defendant's road, until the momentum acquired being exhausted before arriving at the level of the depot, they commenced the retrograde movement which carried them by the switch, and to the place where the collision occurred.

A brakeman attached to the Columbia moving train, when he observed the retrograde motion of the blocked cars, ran “with all his might,” as he expresses it, to the switch, to arrest the return of the loosed cars, but they had passed it before he got there, and were proceeding on their course.

The colliding train was due at Spartanburg at 8 P. M., and while the precise moment of striking is not stated, it would seem to have been just about the time when the lumber cars came to a stand-still. The night was so dark that an object of their size was visible to the lookout on the colliding engine, only when about one hundred feet distant. These are the material and untraversed facts developed in the testimony heard at the trial.

There was a verdict and judgment for the plaintiff, and the defendant appealed.

Mr. Platt D. Walker, for the plaintiff .

Messrs. R. D. Johnson, C. M. Busbee and F. H. Busbee ( Messrs. D. Schenck and Chas. Price were with them on the brief), for the defendant .

SMITH, C. J. (after stating the facts).

If the action had been brought against the organization to the mismanagement and inexcusable negligence of whose servants the intestate's injuries, and consequent loss of life, are directly attributable, there would be no legal defence against its successful prosecution, and the recovery of damages. But it is a different question, when the claim is asserted against the defendant. Its servants had no control over the cars, which had been delivered to the servants of the Columbia company, nearly an hour previous, nor could they exercise any authority over the action of the latter. The inquiry now is, wherein is found the acts or omissions of the defendant, or its employés, out of which springs its responsibility to the plaintiff's intestate, or to the plaintiff, and how the negligence of the servants of the other company can be legally imputed to the defendant, so as to subject it to the claim for compensatory damages.

The first issue submitted to the jury was in this form: Was the death of the plaintiff's intestate caused by the negligence of the defendant? The response rendered being in the affirmative.

The series of instructions asked for by the defendant, present the case in its different aspects upon the evidence, underlying all of which, is the comprehensive proposition, that no negligence on the part of the defendant's servants is shown, entitling the plaintiff...