Strunks v. Payne

• Decision Date: 13 December 1922
• Docket Number: 389.
• Citation: 114 S.E. 840,184 N.C. 582
• Parties: STRUNKS v. PAYNE, DIRECTOR GENERAL OF RAILROADS, ET AL.
• Court: North Carolina Supreme Court

114 S.E. 840

184 N.C. 582

STRUNKS v. PAYNE, DIRECTOR GENERAL OF RAILROADS, ET AL.

No. 389.

Supreme Court of North Carolina

December 13, 1922

Appeal from Superior Court, Guilford County; Long, Judge.

Action by Mary Strunks, administratrix of the estate of John M Strunks, against John B. Payne, Director General of Railroads, and the Southern Railway Company. Judgment for plaintiff, and defendants appeal. New trial ordered on the issue of damages only.

Where an instruction presents a single proposition of law, a general exception to that instruction is sufficient to direct the court's attention to the erroneous omission of an essential element of the proposition.

This is an action by plaintiff, as administratrix of her husband, to recover damages for his death caused by the alleged negligence of the defendant Southern Railway Company. It was admitted that he was killed November 9, 1920, that the plaintiff is the widow and administratrix of the testator and that he also left surviving him three minor children. The jury found upon the issues submitted that the plaintiff's intestate was killed by the negligence of the defendant railway as alleged in the complaint, that he did not assume the risk of being injured, and assessed the damages to the widow at $10,000; to his infant daughter, Margaret, 7 years of age, at $6,000; to his infant son, Marvin, 5 years of age, at $7,000, and to his infant son, Howard, 2 years of age, at $7,000. Judgment accordingly.

It appeared in the evidence that on the morning of November 9 1920, the intestate was a member of a train crew of the defendant railroad in charge of L. M. Carr, conductor, who took out from Greensboro a train of freight cars, 28 or 29 in number, to a point on the belt line of the defendant, serving several manufacturing establishments, known as the Finishing Mill, where said cars were switched, classified, and distributed. There are several tracks branching off from this belt line and used for this purpose. One of these is known as the pass track, near a public highway, and is the one on which intestate was killed.

When this train of cars reached a point on the belt line near the said pass track, the engine was pushing them in a general easterly direction. One car was put upon the main or belt line. Then two gondola cars together, loaded with sand, and each weighing 65 to 75 tons, were kicked or shunted some distance up on the steep grade of the pass track; Strunks, in the performance of his duty as brakeman, set the brakes on these two cars when they ceased rolling up the grade on the pass track; then a box car of lime (weighing 35 tons) was kicked or shunted up the grade of the pass track with sufficient force and violence to strike one of the gondola cars, and coupled with it automatically. The effect of this impact was to jostle the two gondola cars and to start all three cars rolling down the grade.

This created an unexpected emergency. When the cars began to roll down, Strunks was on the ground where it was his duty to be and it was his duty to stop the cars. In order to do this, he had to go on top of the car to get to the brakes. He ran up the ladder of the box car and applied the brakes on that car, using the brake stick; there was nobody there to help him, and nobody on the two gondolas. Strunks was the only brakeman on the cars. In order to stop the cars with only one brake, he would have to apply enough pressure on this brake to stop all three of them, and the brake stick broke, which it seems caused his fall to the ground and his subsequent death.

The box car of lime was kicked up the grade with more force and violence than was perhaps intended, and not being under the control of any one, and with no brakeman on it, this was doubtless the initial cause of the tragedy which followed.

When the three cars began to roll down the grade, Strunks was on the ground near where, on the opposite side, was the conductor, Carr. Strunks ran up the ladder of the box car and applied the brakes to that. These brakes were on the end of the box car which was next to the gondola cars. He fell from this place, between the box car and the first gondola. The truck of the gondola which followed the box car passed over him. Witness Carr heard Strunks apply the brakes, heard a sound as if something had broken; then saw Strunks' feet; saw him when he struck the ground. He fell on the side opposite to the witness.

The defendant in his answer states that Strunks was using the brake stick, at the time that the stick broke, which caused him to become unbalanced and to fall from the car, being thrown under the car and killed. It was in evidence that a brake stick is like a pick handle, reduced to a suitable length, to be used as a lever, which, when inserted in the brake wheel (which is made like the steering wheel of an automobile), enables the brakeman to apply a greater degree of pressure than would otherwise be possible. It was in evidence that the defendant had a rule forbidding the use of brake sticks, but, nevertheless, that they were in universal use and had been for at least 16 years, that there is much work required of brakemen which cannot be done without the use of brake sticks. The conductor in charge of the train knew that Strunks was using a brake stick, and another brakeman testified that he was familiar with and had worked on this particular grade; that he used a stick there, and that to control the cars on this grade it was necessary to use a brake stick.

The conductor, Carr, testified that he did not inspect the brakes, but there was nothing to indicate that the brakes were in bad condition up to the time they started to roll back; that is, when they were struck by the box car and jostled or jarred. Strunks had applied the brakes on these cars, and if in good condition they would have held under the impact.

There was a verdict and a judgment thereon against the defendant, from which it appealed.

Wilson & Frazier, of Greensboro, for appellants.

S. B. Adams and R. C. Strudwick, both of Greensboro, for appellee.

WALKER, J. (after stating the facts as above).

It appears that there was sufficient evidence in the case to warrant the jury in finding that the task of Strunks on this occasion was beyond his power to perform alone with reasonable safety; that the defendant had failed in its duty to furnish sufficient help. If so, this was actionable negligence provided such failure was the proximate cause of the death. Pigford v. R. R., 160 N.C. 93, 75 S.E. 860, 44 L. R. A. (N. S.) 865. That case also holds that the doctrine of the assumption of risk relates to the servant's knowledge of the ordinary risks incident to his employment and which he is presumed to know, but that extraordinary risks created by the master's negligence, if he knows of them, will not defeat a recovery, unless the danger to which he is exposed is so obvious, and imminent, that the servant cannot help seeing and understanding it fully, and he fails under the circumstances to exercise that degree of care for his own safety which is incumbent upon the ordinarily prudent man.

The defendant was negligent in kicking or shunting these cars up the steep incline of the pass track without any one in position to control their movements; the cars being shunted, and not under control, violently struck the two cars already on the pass track and started all three of them rolling down the grade. This was the initial cause of this occurrence, and was negligence. Moore v. R. R., 179 N.C. 641, 103 S.E. 444.

Notwithstanding the defendant had a rule forbidding the use of brake sticks by brakemen, it was in evidence that this rule had been disregarded for more than 16 years, and that all brakemen had for many years constantly used brake sticks, to the knowledge of defendant; that defendant habitually required brakemen to do work which could not be done without their use; and that on this particular grade, in doing the work required of Strunks, the use of a brake stick was necessary. Under these circumstances, the existence of the rule cannot exculpate the defendant. Biles v. R. R., 143 N.C. 79, 55 S.E. 512.

The defendant insists that it was error to refuse to nonsuit or to instruct the jury that if they believed the evidence to answer the first issue, "No," and further that it was error for the court to refuse the prayer for an instruction, viz.:

"If the jury believed the evidence they should find that the plaintiff's intestate assumed the risk incident to his employment."

We do not think that upon this evidence the court committed any error in these respects.

The court charged the jury:

"When the employee knows of the defect and appreciates the risk and danger attributable to it, then if he continues in the employment without objection or without obtaining from the employer, or his representative, an assurance that the defect will be remedied, the employee assumes the risk, even though it arise out of the master's breach of duty."

We do not see how the defendant can complain of this instruction.

This case was brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), and the rule of the federal court, and not of the state court, controls as to the assessment of damages.

Upon the other question, as to the assessment of damages, under what is termed the "present value" rule, it is unnecessary for us to say very much, as the proper rule, and the one therefore that we should follow, was stated by the Supreme Court of the United States in the comparatively recent case of Chesapeake & Ohio R. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117, L. R. A. 1917F, 367, and Chesapeake & Ohio Railroad Co. v. Gainey, 241 U.S. 494, 36 S.Ct. 633, 60 L.Ed. 1124, as follows:

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