Trull v. Seaboard Air Line Ry. Co.

• Decision Date: 23 December 1909
• Citation: 66 S.E. 586,151 N.C. 545
• Parties: TRULL v. SEABOARD AIR LINE RY. CO.
• Court: North Carolina Supreme Court

66 S.E. 586

151 N.C. 545

TRULL v. SEABOARD AIR LINE RY. CO.

Supreme Court of North Carolina

December 23, 1909

Appeal from Superior Court, Mecklenburg County; Webb, Judge.

Action by Cora M. Trull, administratrix of J. T. Trull, against the Seaboard Air Line Railway Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

In an action for death at a railroad crossing, deceased held guilty of contributory negligence barring a recovery.

It appeared in evidence: That on March 9, 1903, the intestate was run over and killed by a train of defendant company as he was endeavoring to cross the railroad at a public crossing in the town of Monroe, N. C.; that plaintiff, having duly qualified as administratrix, instituted an action to recover for the alleged negligent killing within 12 months of the occurrence; that same was pending in the superior court of Union county from term to term till fall term, 1904, when a judgment of nonsuit was entered, and within 12 months of such judgment plaintiff commenced a new action against defendant company in the county of Mecklenburg, and same was there pending till April term, 1908, when a second judgment of nonsuit was had, and plaintiff commenced the present action against defendant for such alleged cause on March 10, 1909 and on the trial the facts and circumstances of the transaction as claimed by plaintiff were also shown in evidence. The case on appeal further states: "At the conclusion of the plaintiff's evidence, the defendant moves to nonsuit, under the Hinsdale act. The court granted the motion upon two grounds: First, that the plaintiff's action is barred by the statute of limitations, not having been brought within the time the law requires actions in such cases to be brought; and, second, from all the evidence introduced by the plaintiff, the court is of the opinion that the plaintiff is not entitled to recover. Thereupon judgment was rendered as appears in the record, and from the foregoing ruling of his honor, and from the said judgment in the case the plaintiff appealed to the Supreme Court, and assigned the said ruling and judgment as error."

E. L Preston and J. D. McCall, for appellant.

Burwell & Cansler, for appellee.

HOKE J.

The first ground for his honor's ruling, as indicated in the above statement of the case on appeal, has been expressly resolved against the defendant's position in Meekins v. Railroad, 131 N.C. 1, 42 S.E. 333. True, we have held in several well-considered decisions that the requirement of the statute (Revisal 1908, § 59) giving a right of action for death caused by the wrongful act, neglect, or default of another, that such action shall be "brought within one year after such death," is not in strictness a statute or limitations, but is a condition affecting the cause of action itself. Gulledge v. Railroad, 148 N.C. 567, 62 S.E. 732; Best v. Kinston, 106 N.C. 205, 10 S.E. 997; Taylor v. Iron Works, 94 N.C. 525. But in Meekins' Case, supra, the court held that, when an action has been originally instituted within one year from the death, this requirement of the statute was complied with, and thereafter the action was subject to the provisions of Code, § 166, now section 370, Revisal 1908, to the effect that if an action shall be commenced within the time prescribed therefor, and the plaintiff be nonsuited, etc., the plaintiff, etc., may commence a new action within one year after such nonsuit, etc., and the present Chief Justice, delivering the opinion said: "The defendant contends that this provision is under the title in the Code applying to limitations, and that the time prescribed under section 1498 is not strictly a statute of limitations. Best v. Kinston, 106 N.C. 205, 10 S.E. 997. But the original action was brought within the time prescribed in section 1498, and therefore it does not here matter what the nature of that prescription is. On the other hand, the time within which a new action may be commenced after a nonsuit, etc., is a statute of limitation, and applies to all cases where a nonsuit, etc., has been sustained. This statute (Code, § 166) contains no exception of cases under section 1498, or of any other cases where the time prescribed for bringing the original action might not be strictly a statute of limitation. We know no cause why the privilege to commence a new action within a year after nonsuit should not apply equally to all cases of nonsuit. The statute makes no distinction, and there is certainly none in the reason of the thing, which is the same as to that class of cases, as in any others."

This has been the accepted construction of the statute (now Revisal 1908, § 370), as it affects causes of action of this character since the decision was rendered in September, 1902 and the case has since been cited with approval several times and held to be decisive. Thus, in Gulledge's Case, supra, Associate Justice Brown said: "Nor have we overruled Meekins v. Railroad, 131 N.C. 1, 42 S.E. 333, in which the original action was brought within one year after death." And quotes a portion of the opinion of the Chief Justice as above stated. And in Nunnally's Case, disposed of at spring term, 1904, in a per curiam opinion (134 N.C. 755, 48 S.E. 998), the injury had occurred in June, 1902, causing intestate's death in October following, and the nonsuit was taken in January, 1904, and Mr. Justice Connor, writing for the court, said: "The judgment of nonsuit must be affirmed. This does not prevent the plaintiff from bringing another action if so advised." Not only is this the primary significance of the language of the statute, giving a right of action in case of wrongful conduct causing death, and its true meaning as established by these authoritative interpretations, but this construction is in accord with right reason and justice. No doubt the chief consideration for this requirement of the statute was to notify defendants, frequently the employés of labor in large numbers, that their attention might be drawn to the occurrence and the evidence bearing upon it noted and in some way secured and preserved, and this purpose is reasonably met by the original institution of the action within the time specified. On the contrary, after action is commenced a trial can rarely ever be had within the year. A deserving plaintiff is sometimes unavoidably interrupted in the preparation of his case. At times he may be presently surprised on the trial, and to hold that a nonsuit rendered necessary in some such way should bar any further action would in many ca...