West v. Atlantic Coast Line R.R.

• Citation: 93 S.E. 479,174 N.C. 125
• Decision Date: 26 September 1917
• Docket Number: 112.
• Parties: WEST v. ATLANTIC COAST LINE R. R.
• Court: North Carolina Supreme Court

93 S.E. 479

174 N.C. 125

WEST v. ATLANTIC COAST LINE R. R.

No. 112.

Supreme Court of North Carolina

September 26, 1917

Appeal from Superior Court, Harnett County; Stacy, Judge.

Action by Festus West against the Atlantic Coast Line Railroad. Judgment for plaintiff, and defendant appeals. Affirmed.

In a crossing flagman's action for injuries, evidence that shortly after the accident the railway repaired the roadbed at the place of the accident held admissible to corroborate testimony of plaintiff.

Action for injuries caused by negligence. The evidence tends to show that on the 23d day of December, 1914, the plaintiff was employed by the defendant as street crossing flagman at Broad street, in the town of Dunn, which runs east and west and intersects the main line of defendant's railway, running north and south, at right angles. At the crossing the defendant has two main line tracks and one warehouse or pass track. The duties of plaintiff were to warn persons traveling Broad street of the approach of trains about to cross said street. This was done by means of a flag which the plaintiff carried in his hand by day and of a lantern by night. Plaintiff's instructions were, and it was his custom upon the approach of a train, to stand on the side of the track upon which the engineer sat in his cab. On December 23, 1914 upon the approach of train No. 89 from the north, it being an interstate passenger train, plaintiff was standing on the west side of the track and gave persons traveling on Broad street warning of the coming of the train. As soon as the train stopped, being then on the crossing, the plaintiff handed his flag to Will Taylor, who was standing on the west side of the track, and himself went upon the platform of the standing train, the evidence being conflicting as to whether he went in the train to assist or to see a passenger, or, as he himself testified, made his way as rapidly as possible over the platform, which was crowded with people, to the other side of the train, which was a part of his duty plaintiff stating, as a witness, that he was going across the platform for the purpose of clearing the second main line track on the east side of said train of all persons who might be standing upon said track, although there was no train approaching upon said second track in so far as he could see.

The plaintiff's evidence tends to show that he had made his way across the platform and had descended the steps on the east side of the train, and had reached the lowest step occupying then his proper position, when, as he was in the act of stepping on the ground, the train started suddenly and with a jerk, throwing plaintiff off. The bottom step struck his back, rolled him under the train, one of his legs being cut off by the wheels of the train. He received other minor injuries.

The evidence, on the part of the defendant tended to show that plaintiff had gone into the train; that he came out after the train had started, and attempted to get off, running for some time while holding to the grabiron and falling under the train. The plaintiff's evidence further tended to show that the east main track had recently been laid. The ground was uneven between the cross-ties when he was hurt, but that the same had been remedied since the accident by elevating the track across Broad street some nine inches or more. There was evidence tending to show that all the time the plaintiff was in the discharge of his duties as flagman when he was on the ground and when he crossed over the steps and platform in his attempt to reach the east side of the track, and that he was assisting or helping the engineer to move his train safely at the time he was injured. Under the evidence and charge of the court the jury rendered the following verdict:

"(1) Was the plaintiff injured by the negligence of the defendant as alleged in the complaint? Answer: Yes.

(2) Did the plaintiff by his own negligence contribute to his injuries as alleged in the answer? Answer: No.

(3) Was the defendant engaged in interstate commerce, and was the plaintiff employed by the defendant in interstate commerce at the time of the plaintiff's injury? Answer Yes.

(4) What damages, if any, is the plaintiff entitled to recover of the defendant? Answer: $7,500."

Judgment was entered thereon, and defendant appealed.

Rose & Rose, of Fayetteville, and Clifford & Townsend, of Dunn, for appellant.

E. F. Young and R. L. Godwin, both of Dunn, for appellee.

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

It was admitted that the train, from which the plaintiff fell, had come from the state of Virginia into this state, and therefore was being used in interstate commerce. The principal question discussed before us was whether the plaintiff, at the time he was injured, was employed in interstate commerce, as he alleged in his complaint; there being evidence to support the allegation which tended to prove that he was a flagman at Broad street crossing, in the city of Dunn, and his duties were to flag trains approaching from either direction, so that they might proceed safely to and beyond the crossing, and also that pedestrians could be properly warned that a train was coming to the crossing, so that they might protect themselves. He was required to stand on the side of the train where the engineer sat in his cab, so that he could co-operate with him in the movement of the train through Dunn, and thereby prevent any injury to the persons on the train and the people using the crossing; and it was, while he was performing his usual duties, and after he had flagged the engineer on the west side of the track, that he passed over the platform of the car to the other side to further perform his duty. While doing so he was thrown from the lowest step of the platform on the east side by a sudden and violent jerk of the train, and his injuries were the result of the fall.

The case was tried under the federal Employers' Liability Act of Congress. We cannot perceive why the plaintiff was not employed in interstate commerce at the time he was hurt, as he was directly connected, by the nature of the duties assigned to him, with the movement of the train from which he fell, and was, of course, on the train when the accident occurred. It seems to us that these facts, not seriously disputed, in this phase of the case bring it squarely within the operation of the federal law. The very question we have here was virtually passed upon by us in the recent cases of Sears v. A. C. L. R. R. Co., 169 N.C. 447, 86 S.E. 176; Raines v Sou. Railway Co., 169 N.C. 189, 85 S.E. 294. In the Sears Case we said that:

"The first question may well be disposed of by a bare reference to the evidence. * * * The engine which was to carry the train to Florence, S. C., had steam up, and R. C. Garland, the engineman, was in the cab, and moved the train under signals from the plaintiff. This would seem to properly characterize this train as one engaged in interstate commerce, and while the plaintiff was employed on a local shifting engine, any injury to him through the negligence of the defendant while he was engaged in cutting out the 'bad order car' from this train is regarded in law as one received while he was 'employed in such commerce.' "

We referred to Pedersen v. D. L. & W. Railroad Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153 where the court held that the plaintiff, who was injured by the negligence of the defendant in that case while he was carrying bolts to the workmen on a bridge which was part of the defendant's railway and was being repaired in some of its parts, was employed in interstate commerce. Defendant was an interstate carrier, its line extending through several states. It was held that, upon these facts, the defendant was engaged...