Southwell v. Atlantic Coast Line R. Co.

• Citation: 127 S.E. 361,189 N.C. 417
• Decision Date: 08 April 1925
• Docket Number: 286.
• Parties: SOUTHWELL v. ATLANTIC COAST LINE R. CO.
• Court: United States State Supreme Court of North Carolina

127 S.E. 361

189 N.C. 417

SOUTHWELL v. ATLANTIC COAST LINE R. CO.

No. 286.

Supreme Court of North Carolina

April 8, 1925

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

Action by Ida May Southwell, administratrix of H. J. Southwell against the Atlantic Coast Line Railroad Company. From a judgment of nonsuit, plaintiff appeals. Judgment of nonsuit set aside, and new trial awarded.

On July 18, 1922, plaintiff's intestate, a locomotive engineer employed by the defendant, at the end of his run from Fayetteville to Wilmington, carried his engine to the roundhouse and, after attending to duties incident to the day's work, started home. While yet on defendant's premises and going along the usual exit about 7 p. m. he was shot with a pistol and killed by H. E. Dallas, who was assistant yard master and special policeman during a strike. At the conclusion of plaintiff's evidence, the defendant's motion to dismiss the action as in case of nonsuit was allowed, and the plaintiff excepted and appealed. The material facts are stated in the opinion.

Where there is any evidence sufficient to warrant a verdict, it is error to take the case from the jury and order a nonsuit or direct a verdict.

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

Rountree & Carr, Thos. W. Davis, and V. E. Phelps, all of Wilmington for appellee.

ADAMS J.

In the complaint neither the federal Employers' Liability Act (U. S. Comp. St.§§ 8657-8665) nor the state statute (C. S. § 3466) is specifically pleaded, but in the answer it is alleged that, at the time of the intestate's injury and death, the defendant was engaged and the intestate was employed in interstate commerce. The only testimony on the question was that of E. L. Fonvielle, a witness for the plaintiff. He said that the deceased was the engineer on train No. 322, hauling freight from Fayetteville to Wilmington, and that in the train were cars which were to be carried from places within to places without the state. The carriage of these cars, the defendant argues, constituted commerce among the states. Pennsylvania Co. v Donat, 239 U.S. 50, 36 S.Ct. 4, 60 L.Ed. 139; Pennsylvania R. Co. v. Sonman Co., 242 U.S. 120, 37 S.Ct. 46, 61 L.Ed. 188; York Man. Co. v. Colley, 247 U.S. 21, 38 S.Ct. 430, 62 L.Ed. 963, 11 A. L. R. 611; Railroad v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591, Ann. Cas. 1914C, 159. It is also contended that the deceased was employed in interstate commerce at the time he was shot by Dallas, though he was then leaving the defendant's yards after his day's work. Erie Railroad v. Winfield, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057, Ann. Cas. 1918B, 662; So. Ry. Co. v. Puckett, 244 U.S. 571, 37 S.Ct. 703, 61 L.Ed. 1321, Ann. Cas. 1918B, 69; Railroad v. Zachary, supra; Hinson v. Railroad, 172 N.C. 646, 90 S.E. 772; Davis v. Railroad, 134 Minn. 49, 158 N.W. 911; Easter v. Railroad, 76 W.Va. 383, 86 S.E. 37; Railroad v. Walker's Adm'r, 162 Ky. 209, 172 S.W. 517. See, also, annotation, 10 A. L. R. 1184.

Upon these propositions the defendant rests its contention that it was engaged in interstate commerce, and that the intestate was employed in such commerce at the time of his injury, and that the controversy must therefore be determined in accordance with the federal law. It is further insisted that under the federal act the right of recovery is always predicated only upon proof of injury or death proximately resulting from the defendant's negligence, and never upon proof of willful homicide committed by the defendant's officer, agent, or other employee. Railroad v. Winfield, 244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1039; Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299; Roebuck v. Railroad, 99 Kan. 544, 162 P. 1153, L. R. A. 1917E, 741; Roberts v. Railroad, 143 N.C. 176, 55 S.E. 509, 8 L. R. A. (N. S.) 798, 10 Ann. Cas. 375; Belch v. Railroad, 176 N.C. 22, 96 S.E. 640; Capps v. Railroad, 178 N.C. 558, 101 S.E. 216; U.S. Compiled St. § 8657 et seq.

If we resolve these questions in favor of the defendant, we are yet to determine whether there is any evidence of its actionable negligence, for it is settled law that a motion to dismiss an action as in case of nonsuit will be denied if there is evidence which, most favorably considered, will support a verdict for the plaintiff. C. S. § 567, and citations. A deliberate review of the record has convinced us that there is evidence of the defendant's negligence which should have been submitted to the jury. A master owes his servant the same duty to respect his person that he owes third persons, and is required to exercise due care for his safety. Jaggard on Torts, 280 (92), 992. Cooley states the principle in these words:

"The rule, that a master is responsible to persons who are injured by the negligence of those in his service, is subject to the general exception, that he is not responsible to one person in his employ for an injury occasioned by the negligence of another in the same service, unless generally or in respect of the particular duty then resting upon the negligent employee, the latter so far occupied the position of his principal as to render the principal chargeable for his negligence as for personal fault." Cooley on Torts (3d Ed.) 1173.

It is obvious, then, that the question of the defendant's liability, in part at least, involves the relation existing between the...