Wachovia Bank & Trust Co. v. Southern Ry. Co.

• Decision Date: 22 January 1936
• Docket Number: 751.
• Parties: WACHOVIA BANK & TRUST CO. v. SOUTHERN RY. CO. et al.
• Court: North Carolina Supreme Court

183 S.E. 620

209 N.C. 304

WACHOVIA BANK & TRUST CO. v. SOUTHERN RY. CO. et al.

No. 751.

Supreme Court of North Carolina

January 22, 1936

Appeal from Superior Court, Forsyth County; Rousseau, Judge.

Action by the Wachovia Bank & Trust Company, executor of E. D Vaughn, deceased, against the Southern Railway Company, J. H Richardson, and J. P. Stanton. The railway's petition for removal to the United States District Court was denied Stanton's demurrer to the complaint was overruled, and defendants appeal.

Affirmed.

Servant is liable to third party for act of malfeasance or nonfeasance committed or omitted in scope of his employment where such act is a proximate cause of plaintiff's injuries and plaintiff is free from blame.

This is an action for actionable negligence, brought by plaintiff against all of the defendants as joint tort-feasors, alleging damage.

Wachovia Bank & Trust Company, as executor of E. D. Vaughn, commenced an action in the superior court of Forsyth county against the Southern Railway Company, J. H. Richardson, and J. P. Stanton, seeking to recover for the alleged wrongful death of E. D. Vaughn, who was killed by a passenger train of the defendant, Southern Railway Company, at the Fifth-street crossing in the city of Winston-Salem, N. C., on April 11, 1934.

The plaintiff, Wachovia Bank & Trust Company, executor, J. H. Richardson, and J. P. Stanton, are residents of North Carolina; the Southern Railway Company is incorporated under the laws of the state of Virginia. J. H. Richardson was the engineer of the train which struck the deceased and J. P. Stanton was the crossing watchman, and according to the complaint (liberally construed) he was on duty at the Fifth-street crossing.

The plaintiff alleges the negligence of the defendants, in substance: That J. P. Stanton was acting as watchman for the Southern Railway Company at the crossing where plaintiff's testator was killed, in compliance with the requirements of an ordinance of the city of Winston-Salem that a watchman be stationed at this crossing between the hours of 6 a. m. and 12 at night; that at the time in question the defendant Stanton was on duty at the crossing and was in the house erected for the watchman, and did not warn the plaintiff's testator of the approaching train, and that the deceased, relying on Stanton to warn him, started across the tracks; that the watchman, Stanton, failed to keep a proper lookout for either the train or pedestrians and traffic, and did not emerge from his shelter or resthouse until about the time the train was entering the intersection, and was too late for the deceased to be warned of the danger by seeing or hearing the watchman, Stanton; that the watchman, Stanton, was negligent in not warning plaintiff's testator; that J. H. Richardson, the engineer, carelessly and negligently failed to blow any whistle or ring a bell, or give any other warning of the approach of the train, and proceeded at a high, unlawful, and excessive rate of speed into and upon and across the said intersection and struck the said E. D. Vaughn in the back when he was looking in a southeasterly direction and when he was almost across the said intersection, causing injuries from which he died almost immediately thereafter. That the engineer "failed and neglected to keep any lookout for pedestrians. * * * That the defendant, Southern Railway Company, its officers, agents and servants had the last clear chance to avoid a collision. * * * That the collision was caused by no fault or negligence on the part of the plaintiff's testator, but was due to and proximately arose on account of the careless and negligent conduct of the defendants, Southern Railway Company and J. H. Richardson, and J. P. Stanton."

The defendant Southern Railway Company in apt time petitioned the clerk of superior court of Forsyth county to remove the case to the United States District Court. This was denied. The Southern Railway Company appealed to the judge of the superior court of Forsyth county, and the petition was again denied, and the defendant excepted, assigned error, and appealed to the Supreme Court. While the matter was pending in the Supreme Court, the defendant J. P. Stanton was permitted to file a demurrer, and is now before this court on a demurrer to the plaintiff's complaint on the grounds that it states no cause of action against him.

Wm. H. Boyer, of Winston-Salem, for appellant Stanton.

Manly, Hendren & Womble and W. P. Sandridge, all of Winston-Salem, for appellant Southern Ry. Co.

Hastings & Booe, Fred S. Hutchins, and H. Bryce Parker, all of Winston-Salem, for appellee.

CLARKSON Justice.

The defendant Southern Railway Company contends: "That no cause of action is stated against the crossing watchman, Stanton (although the allegations of his negligence state a cause of action against the Southern Railway Company). From this it follows that there is a fraudulent joinder of the crossing watchman. With the crossing watchman out of the case, a separable controversy exists between the plaintiff and the Southern Railway Company which entitles the Southern Railway Company to remove this case to the United States District Court." We cannot agree with the contentions of defendant, the Southern Railway Company.

The present action is not founded on contract, but is an action for actionable negligence instituted against all three defendants as joint tort-feasors.

In Tudor v. Bowen, 152 N.C. 441, 443, 67 S.E. 1015, 1017, 30 L.R.A. (N.S.) 804, 136 Am.St.Rep. 836, 21 Ann.Cas. 646, it is said: "Negligence is essentially relative and comparative. The legal duty we owe to others is the accepted standard, and that duty is measured by the exigencies of the occasion." "The term "negligence" has been defined by the national Supreme Court to be the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the exigencies of the situation. Negligence has always relation to the circumstances in which one is placed, and what an ordinarily prudent man would do or omit in such circumstances. Charnock v. Texas & P. R. Co., 194 U.S. 432, 24 S.Ct. 671, 48 L.Ed. 1057.' [2 Roberts Federal Liabilities and Carriers (2d Ed.) (1929)] 811, pp. 1558, 1559." Hamilton v. R. R., 200 N.C. 543, 555, 158 S.E. 75, 82.

In the religious realm, the duty is thus stated: "We have left undone those things, which we ought to have done; And we have done those things which we ought not to have done; And there is no health in us."

It is well settled that a party injured can sue any or all joint tort-feasors for actionable negligence.

In White v. Realty Co., 182 N.C. 536, at page 538, 109 S.E. 564, 565, is the well-settled law in this state: "But if any degree, however small, of the causal negligence, or that without which the injury would not have occurred, be attributable to the defendant, then the plaintiff, in the absence of any contributory negligence on his part, would be entitled to recover, because the defendant cannot be excused from liability unless the total causal negligence or proximate cause be attributable to another or others. 'When two efficient proximate causes contribute to an injury, if defendant's negligent act brought about one of such causes, he is liable.' Wood v. Public-Service Corp., supra [174 N.C. 697, 94 S.E. 459, 1 A.L.R. 942], and cases there cited."

It is conceded in the brief of defendant Southern Railway Company that whether or not a cause of action is stated against the watchman, Stanton, is to be determined by the law of this state. Chicago, R.I. & P. R. Co. v. Schwyhart, 227 U.S. 184, 33 S.Ct. 250, 57 L.Ed. 473.

It may not be amiss to say that the decisions of other jurisdictions are persuasive, but not binding on us. Whatever may be the holdings in other jurisdictions, in this state an agent or servant, under proper allegations of negligence, which is the proximate or one of the proximate causes of the injury, plaintiff being free from blame, and proof to that effect, is liable to third parties for acts of malfeasance or nonfeasance-commission or omission-done in the scope of his employment. Swain v. Cooperage Co., 189 N.C. 528, 127 S.E. 538; Crisp v. Champion Fibre Co., 193 N.C. 77, 136 S.E. 238; Givens v. Mfg. Co., 196 N.C. 377, 145 S.E. 681. The cases of Mitchell v. Durham, 13 N.C. 538, and Brown v. R. R., 204 N.C. 25, 167 S.E. 479, cited by defendant appellants are distinguishable, and the case of Minnis v. Sharpe, 198 N.C. 364, 151 S.E. 735, is not contrary to the position here taken.

In Barber v. R. R., 193 N.C. 691, 693, 138 S.E. 17, 18, the charge of the court below was approved, which is as follows: "Our law has also said that, where a railroad company maintains a flagman at a railroad crossing, whether voluntarily or by law or custom, the public generally has a right to presume that this safeguard will be reasonably maintained and attended to, and, in the absence of knowledge to the contrary, the fact that the flagman is absent from his post, or, if present, is not giving the warning of danger, is an assurance of safety and an ample invitation to cross, upon which a traveler familiar with the crossing may rely and act, within reasonable limitations, on the presumption that it is safe for him to go on the crossing." Russell v. Railroad, 118 N.C. 1098, 1109, 24 S.E. 512; Cooper v. Railroad, 140 N.C. 209, 52 S.E. 932, 3 L.R.A. (N.S.) 391, 6 Ann.Cas. 71; Shepard v. Railroad, 166 N.C. 539, 82 S.E. 872; Parker v. Railroad, 181 N.C. 95, 106 S.E. 755.

In 18 R.C.L., p. 818, § 272, the editor...