Appeal
from Superior Court, Buncombe County; McElroy, Judge.
Action
by Essie Higdon Ward, administratrix of the estate of Norvin
G. Ward, against the Southern Railway Company. The court
sustained a motion of nonsuit, and plaintiff appeals.
Affirmed.
The
evidence tended to show that Norvin G. Ward, plaintiff's
intestate, was fatally injured about 12 o'clock noon, at
Hendersonville, on or about February 9, 1933. Ward was head
brakeman on a freight train of defendant, and it was admitted
that he was killed while engaged in interstate commerce. The
story of his death, as told by the engineer, is substantially
as follows: "Approaching Hendersonville, about one-half
mile from the station, we left the main line and headed into
the passing track. Mr. Ward threw the switch. He was riding
on the engine all the way from Asheville. I moved along so he
could get off and throw the switch without stopping. * * * He
got off on the right-hand side, the side occupied by me as
engineer. He then walked back just a little way, stopped and
was looking under the cars as I pulled by inspecting the
train. * * * It was the duty of the brakeman to inspect the
train at all times. * * * He was about four cars back from
the engine and there was a big coal car loaded with large
lumps of coal loaded up high, and just about the time the
coal car came up where Mr. Ward was there were three colored
men came up from the opposite side and went to throwing coal
off and about the third piece they threw off hit Mr. Ward. I
didn't see the colored men climb up or until they came up
on the top of the car. I first saw them on the car. They got
up on the opposite side of the car from where Ward was
standing. * * * When the coal hit Mr. Ward he fell just as
quick as that coal hit him, right on the ground. I turned the
engine over to the fireman, told him to pull in the clear
that a colored man had killed the brakeman. All three of the
men on the car were throwing off coal, on the same side. * *
* It looked like his skull was crushed." In response to
question as to how long trespassers had been throwing coal
off the train, the witness said: "They have been doing
it ever since I have been on the railroad, that is about
thirty-two years. * * * Throwing it off every time it would
go slow enough for them to get upon it." In response to
the question to the engineer as to whether he could have
stopped the train or "jostled the cars" so as to
prevent colored men from throwing coal from the train, he
said: "It could not have been done. * * * I could not
have helped it-Had very little time. I didn't have time.
The darkies had been stealing coal here. I had known it for
thirty-two years I never knew of anybody being hurt before
that. Mr. Ward had been running on this line part of the time
and he had been with the railroad a great while. He had been
over on this line a good deal. I have had him as conductor
over here. * * * Everybody knew that the darkies were
stealing coal from the train." There was further
evidence that the conductor was in the caboose at the time on
the rear of the train, where his duty required him to be.
There
was further evidence that the defendant company had done
nothing to prevent thieves from boarding freight trains, when
they were running slowly or standing still, and stealing coal
therefrom during the last three or four years. There was also
evidence that coal was frequently stolen over the entire
system, and that at other points on the system special agents
had been employed by the defendant in an attempt to apprehend
the thieves.
At the
conclusion of the evidence, the trial judge sustained a
motion of nonsuit and the plaintiff appealed.
If
between negligence and injury there is intervening crime or
willful and malicious...
