Southwell v. Atlantic Coast Line R. Co.

• Decision Date: 17 February 1926
• Docket Number: 284.
• Parties: SOUTHWELL v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

131 S.E. 670

191 N.C. 153

SOUTHWELL v. ATLANTIC COAST LINE R. CO.

No. 284.

Supreme Court of North Carolina

February 17, 1926

Appeal from Superior Court, New Hanover County; Dunn, Judge.

Action by Ida Mae Southwell, administratrix of H. J. Southwell deceased, against the Atantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. No error.

In action for death of railroad employee, shot by special police officer, negligence in failing to furnish deceased safe place to work held for jury.

See also, 127 S.E. 361, 189 N.C. 417.

Civil action brought by plaintiff, administratrix of deceased, to recover damages for alleged negligence of the defendant that resulted in the death of plaintiff's intestate. Defendant objected to the second issue and tendered the issue "Was plaintiff's intestate killed by the wanton and willful act of H. E. Dallas?" The court below refused to submit the issue. Defendant duly excepted and assigned error.

The issues submitted to the jury and their answers thereto were as follows:

"(1) Was the plaintiff's intestate, at the time of the killing, engaged in the Interstate Commerce? Answer: Yes.

(2) Was the plaintiff's intestate killed by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

(3) If so, what damage is plaintiff entitled to recover of the defendant? Answer: $12,000."

On the trial in the court below the defendant introduced no evidence, but made numerous exceptions and assignments of error to admission and exclusion of evidence, to refusal to give its prayers for instructions, and to certain excerpts from charge as given, and appealed to the Supreme Court.

Thomas W. Davis and Rountree & Carr, all of Wilmington, for appellant.

L. Clayton Grant and Weeks & Cox, all of Wilmington, and Dye & Clark, of Fayetteville, for appellee.

CLARKSON J.

At the close of all the evidence plaintiff's counsel consented that the court might answer the first issue "Yes," and that the evidence of the defendant upon the question of the deceased being engaged in interstate commerce should be eliminated from the record on appeal. On the first appeal of this case, defendant made a motion for judgment as of nonsuit (C. S. § 567), at the conclusion of plaintiff's evidence. Plaintiff appealed to the Supreme Court, and the judgment of nonsuit was set aside and a new trial awarded. Southwell v. Railroad, 127 S.E. 361, 189 N.C. 417. From the finding on the first issue the alleged actionable negligence must be determined under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665).

"In construing a federal statute, a state court is bound by the construction placed on it by the federal courts." 7 R. C. L. p. 1013; 25 R. C. L. p. 955; Statutes, § 219; Mangum v. Railroad, 125 S.E. 549, 188 N.C. 694.

In Barbee v. Davis, 121 S.E. 178, 187 N.C. 83, we said:

"The federal Employers' Liability Act, enacted by Congress, has been held constitutional, under the power committed to it by the commerce clause of the Constitution, and all states are bound by its provisions. The Constitution of the United States is the 'golden cord' that binds the states together." Id., 44 S.Ct. 401, 264 U.S. 588, 68 L.Ed. 863; Second Employers' Liability Cases, 32 S.Ct. 169, 223 U.S. 1, 56 L.Ed. 327, 38 L. R. A. (N. S.) 44; Philadelphia, B. & W. R. Co. v. Schubert, 32 S.Ct. 589, 224 U.S. 603, 56 L.Ed. 911.

The first federal Employers' Liability Act was declared unconstitutional; the second was approved April 22, 1908, and declared constitutional by the Supreme Court of the United States, January 15, 1912. Second Employers' Liability Cases, supra.

Roberts, Injuries to Interstate Employees, pp. 5, 6, 7, says:

"The first section provides that every common carrier by railroad, while engaged in interstate commerce, shall be liable to every employee while employed by such carrier in such commerce or in case of his death, to certain beneficiaries therein named, for such injury or death, resulting in whole or in part, from the negligence of the carrier, or its employees, or by defects or insufficiencies due to negligence in any of its equipments or property. The second section provides that every common carrier by railroad on lands of the United States other than streets shall be liable in the same way to any of its employees. The third section provides that contributory negligence shall not bar recovery, but shall only diminish the damages, except that no employee injured or killed where the violation of a safety law for employees contributed to the injury, shall be held to have been guilty of contributory negligence. The fourth section provides that assumption of risk shall not be a defense where the violation of a safety law contributed to the accident. The fifth section declares all contracts or devices intended to exempt the carrier from liability under the act to be void, except that the carrier may plead as a set-off any sum if paid to the injured employee as insurance or relief fund. Section 6 provides that any action under the act is barred after two years. Section 8 provides that the act does not limit the obligation of a common carrier under any other federal law or affect any pending suits under the 1906 act."

At pages 10, 11, it is said:

"In 1910 Congress passed two important amendments to the federal Employers' Liability Act. One provides that any action under the act may be brought in a Circuit Court of the United States in the district of the residence of the defendant, or in which the cause of action arose or in which the defendant shall be doing business at the time of commencing such action, and further provides that the jurisdiction of the courts of the United States shall be concurrent with that of the courts of the several states, and any case arising under the act and brought in any state court shall not be removable to any of the United States. The second amendment provides, that, 'any right of action given by this act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee's parents, and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury.' * * *

In construing the federal Employers' Liability Act, the decisions of the national courts control over those of the state courts. For example, in determining when a carrier is guilty of negligence under the act; when an employee assumes the risk; what proof creates a dependency in death cases within the meaning of the act; whether there is any evidence tending to show liability sufficient for the case to be submitted to the jury; the measure of damages and instructions thereon--are all matters upon which the decisions of the national courts control. Where the decisions of the federal courts on a question under the act are conflicting, then a state court will follow those decisions of the national courts which appear to it to rest on the better reason. * * * In all actions under the federal Employers' Liability Act prosecuted in the state courts, the rules of practice and procedure are governed by the laws of the states where the cases are pending. Questions as to whether amendments shall be permitted to petitions or answers; when motions to elect should be sustained or overruled; the rules of evidence; variances; excessiveness of verdicts and similar questions of practice and procedure, are matters to be determined solely by the state courts in accordance with the statutes of the state and their rules applying the same." Roberts, supra, pp. 15, 16.

"The first section of the federal Employers' Liability Act provides that every common carrier by rail while engaging in interstate commerce and while the servant injured or killed is employed in such commerce, is liable 'for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency due to its negligence, in its cars, engines, appliances, machinery track, roadbed, works, boats, wharves, or other equipments.' * * * The clause relating to negligence in the first section of the federal act has two branches; one governing the negligence of any of the officers, agents, or employees of the carrier, which abolishes the common-law fellow servant doctrine; and the other relating to defects and insufficiencies due to negligence in the railroad's rolling stock, machinery, track, roadbed, works, boats, wharves, or other equipment. These two clauses, it has been held, cover any and all negligent acts of which the carrier could have been guilty under the common law. * * * Except that it abolishes the common-law rule of nonliability for injuries to employees within its terms due to negligence of fellow servants, the first section of the federal Employers' Liability Act which defines when a carrier is liable adopts the common-law rule of negligence as to the two branches of liability mentioned. Under the act, the company is not a guarantor of the safety of the place of work or of the machinery and appliances of the company. The extent of its duty to its employees is to see that ordinary care and prudence are exercised, to the end that the place in which the work is to be performed and the tools and appliances of the work may be safe for the workmen. To convict a defendant railroad company under the first section as to defects, the plaintiff must prove the existence of the defect complained of, that it was a defect of such a character as to cause its existence to be a negligent failure on the part of the defendant, and that the defect was the proximate cause of the injury." ...