Wagoner v. North Carolina R. Co., 738

• Citation: 238 N.C. 162,77 S.E.2d 701
• Decision Date: 23 September 1953
• Docket Number: No. 738,738
• Parties: WAGONER, v. NORTH CAROLINA R. CO. et al.
• Court: North Carolina Supreme Court

Page 701

77 S.E.2d 701

238 N.C. 162

WAGONER, v. NORTH CAROLINA R. CO. et al.

No. 738

Supreme Court of North Carolina.

Sept. 23, 1953

Long & Long, Graham, W. T. Joyner and H. E. Powers, Raleigh, for the defendant, appellants.

Cooper, Long, Latham & Cooper, Burlington, for the plaintiff, appellee.

PARKER, Justice.

The defendants assign as Error No. One the denial of the defendants' motions for nonsuit made at the close of the plaintiff's evidence. The defendants offered no evidence. The defendants further assign as errors the Court's refusal to submit issues of negligence and contributory negligence, as requested by the defendants, and the Court's submitting only the issue as to willful or wanton negligence; and also assigns as errors parts of the charge, and part of the argument of one of counsel for the plaintiff.

We shall discuss first the motions for judgment of nonsuit, for if those motions should have been allowed, a discussion of the other assignments of error will become academic.

The duty of the Court in passing upon a motion for nonsuit has been stated so frequently and so clearly, that to attempt to restate it would be like carrying coal to Newcastle. Suffice it to say that on such a motion the Court interprets the evidence in the light most favorable to the plaintiff, and gives to him the benefit of every inference which the testimony fairly supports. Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25; Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757, 17 A.L.R.2d 881.

The plaintiff appellee in her brief states 'our case was bottomed upon the doctrine of that conduct on the part of the railroad which amounts to wantonness, willfulness, or the like, precluding the defense of contributory negligence.'

These two questions are first presented. First, considering the evidence as set forth above in the light most favorable to the plaintiff, was it sufficient to show that the defendants committed an act of willful or wanton negligence in detaching a car from the shifting engine at or east of the Lexington Avenue Crossing, and without anyone on the car and without any signal or warning, and without any employee of theirs being in the yard to warn anyone of the moving car, letting it move at a slow speed on its Short Track entirely in their freight yard and on their property, under the conditions then and there existing? Second, if the evidence was not sufficient to show willful or wanton negligence, was it sufficient to show that the defendants were guilty of ordinary negligence?

'An act is wanton when, being needless, it manifests no rightful purpose, but a reckless indifference to the interests of others; and it may be culpable without being criminal.' wise v. Hollowell, 205 N.C. 286, 171 S.E. 82, 84. 'An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others. ' Foster v. Hyman, 197 N.C. 189, 148 S.E. 36, 37.

'The term 'wanton negligence' * * * always implies something more than a negligent act. This court has said that the word 'wanton' implies turpitude, and that the act is committed or omitted of willful, wicked purpose; that the term 'willfully' implies that the act is done knowingly and of stubborn purpose but not of malice. * * * Judge Thompson says: 'The true conception of willful negligence involves a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another, which duty the person owing it has assumed by contract, or which is imposed on the person by operation of law. Willful or intentional negligence is something distinct from mere carelessness and inattention, however gross. We still have two kinds of negligence, the one consisting of carelessness and inattention, whereby another is injured in his person or property, and the other consisting of a willful and intentional failure or neglect to perform a duty assumed by contract or imposed by operation of law for the promotion of the safety of the person or property of another.' Thompson on Neg. (2d Ed.), § 20, et seq.' Bailey v. North Carolina R. Co., 149 N.C. 169, 62 S.E. 912, 914.

To constitute willful injury there must be actual knowledge, or that which the law deems to be the equivalent of actual knowledge, of the peril to be apprehended, coupled with a design, purpose, and intent to do wrong and inflict injury. A wanton act is one which is performed intentionally with a reckless indifference to injurious consequences probable to result therefrom. Ordinary negligence has as its basis that a person charged with negligent conduct should have known the probable consequences of his act. Wanton and willful negligence rests on the assumption that he knew the probable consequences, but was recklessly, wantonly or intentionally indifferent to the results. Everett v. Receivers of Richmond & D. R. Co., 121 N.C. 519, 27 S.E. 991; Ballew v. Asheville & E. T. R. Co., 186 N.C. 704, 120 S.E. 334; Foster v. Hyman, supra; State v. Stansell, 203 N.C. 69, 164 S.E. 580; 38 Am.Jur., Negligence, Sec. 48.

'In strictly accurate use, the terms 'willfullness' and 'wantonness' express different ideas and are clearly distinguishable, the distinction resting chiefly in the nature and extent of intent involved. It has been said that 'the difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether it does so or not.'' 65 C.J.S., Negligence, § 9, page 379.

The plaintiff vigorously contends that the movement of the detached coal car under all the circumstances was willful or wanton negligence on the part of the defendants, and quotes copiously from the opinion in Johnson v. Seaboard Air Line R. Co., 163 N.C. 431, 79 S.E. 690, and also cites and relies upon Wilson v. Atlantic Coast Line R. Co., 142 N.C. 333, 55 S.E. 257; Vaden v. North Carolina R. Co., 150 N.C. 700, 64 S.E. 762; Farris v. Southern R. Co., 151 N.C. 483, 66 S.E. 457, 40 L.R.A.,N.S., 1115; 151 A.L.R., p. 37; 167 A.L.R., p. 1253; and other authorities. The defendants as vigorously contend otherwise.

Our following cases are where a detached car movement caused injury or death at a public crossing. Bradley v. Ohio River & C. Ry. Co., 126 N.C. 735, 36 S.E. 181, the view was also obstructed by a line of boxcars on a side track; Wilson v. Atlantic Coast Line R. Co., supra; Johnson v. Seaboard Air Line R. Co., supra; Lutterloh v. Atlantic Coast Line R. Co., 172 N.C. 116, 90 S.E. 8, a 12 year old boy. In the Johnson case the Court said [163 N.C. 431, 79 S.E. 696]: 'This court has recently declared, in Vaden v. [North Carolina R. Co.], 150 N.C. 700, 64 S.E. 762, that: 'Making 'flying switches' on the railway tracks and sidings running across and along the streets of populous towns is per se gross negligence, and has been so declared by all courts in this country and by text-writers generally. It is stated in one of the best known textbooks that the use of a running switch in a highway in the midst of a populous town or village is, of itself, 'an act of gross and criminal negligence on the part of the company"", citing authorities. In Lutterloh v. Atlantic Coast Line R. Co., supra, this Court stated: 'It is established with us by repeated decisions that it is negligence per se to make one of these flying switches along the streets of populous towns or at public or much frequented crossings', citing the Johnson case, supra, and others. In the Lutterloh case issues of ordinary negligence and contributory negligence were submitted to the jury, as well as in the Bradley and Wilson cases.

In Vaden v. North Carolina R. Co., supra, a 13 year old boy was struck and killed by a flying switch about 30 feet from where Tomlinson Street crosses the tracks. He was killed on a switch track located in a populous part of High Point immediately in front of a factory where he worked. The factory had just closed for the day, and employees were filling the streets and crossings. Issues of negligence and contributory negligence were submitted. Brown, J., wrote the opinion for the Court.

In Bordeaux v. Atlantic Coast Line R. Co., 150 N.C. 528, 64 S.E. 439, these facts appeared from the evidence. Plaintiff's intestate was a car repairer employed in defendant's switching and repair yards at South Rocky Mount. To protect its workmen the defendant had long since adopted and published rules requiring those repairing cars on tracks in the yards to place a blue flag on the car to give notice to the switch enginemen not to move cars or run other cars in on them. The intestate with two fellow-workmen went to repair a tank car on Track No. 1. There was much shifting on the yard tracks at the time. They decided it was a short job, and put out one person to watch, who failed to do so. While the intestate was under the car repairing it, the switch engine 'kicked' or 'pitched' a car loaded with lumber on to Track No. 1, which struck another car, and that against the tank car, running it over intestate and killing him. It was a custom of long standing in the yards, and well known, that if the job was short, the flag was not put out. Brown, J., speaking for the Court wrote: 'We admit that the rulings of the courts in regard to kicking cars, or making flying switches at public or much frequented crossings, do not apply to the constant changing or switching of cars that is inevitable in the extensive repair and switch yards of a large railway system. ' Issues of ordinary negligence, contributory negligence and damages were submitted to the jury.

In Farris v. Southern R. Co., 151 N.C. 483, 66 S.E. 457, 458, 40 L.R.A., N.S., 1115, these facts appeared. The intestate was an employee of the defendant. He was walking down a space 6 to 8 feet wide between the first and second tracks of the defendant in a busy yard of the defendant at Asheville. An engine on the...