Williams v. Atlantic Coast Line R. Co.

• Decision Date: 28 October 1925
• Docket Number: 285.
• Parties: WILLIAMS v. ATLANTIC COAST LINE R. CO. ET AL.
• Court: North Carolina Supreme Court

129 S.E. 816

190 N.C. 366

WILLIAMS v. ATLANTIC COAST LINE R. CO. ET AL.

No. 285.

Supreme Court of North Carolina

October 28, 1925

Appeal from Superior Court, Pender County; Dunn, Judge.

Action by Ida Williams, administratrix, against the Atlantic Coast Line Railroad Company and another. From judgment of nonsuit as to second defendant, and judgment for first defendant plaintiff appeals. New trial awarded.

Master's liability for death of employee struck by train held for jury.

Civil action to recover damages for the wrongful death or negligent killing of plaintiff's intestate. There was a judgment of nonsuit entered at the close of plaintiff's evidence exculpating the Garysburg Manufacturing Company from liability; and, on the usual issues of negligence contributory negligence, and damages being submitted as between the plaintiff and the Atlantic Coast Line Railroad Company, the jury answered the first two in the affirmative. Judgment accordingly. The plaintiff appeals from both judgments, assigning errors.

E. K Bryan, of Wilmington, and C. E. McCullen, of Burgaw, for appellant.

Rountree & Carr, of Wilmington, for appellee Atlantic Coast Line R. Co.

Herbert McClammy, of Wilmington, for appellee Garysburg Mfg. Co.

STACY C.J.

Defendants earnestly contend that the nonsuit in favor of the Garysburg Manufacturing Company should be sustained, and that the verdict in favor of the Atlantic Coast Line should be upheld, but we think there was more than a scintilla of evidence offered on the hearing tending to establish the plaintiff's position as against both defendants, and which was sufficient to carry the matters to the jury for its consideration and determination.

It is now the settled rule of practice in this jurisdiction that, on a motion to nonsuit, the evidence which makes for the plaintiff's claim and which tends to support her cause of action, whether offered by the plaintiff or elicited from the defendant's witnesses, will be taken and considered in its most favorable light for the plaintiff, and she is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom. Christman v. Hilliard, 167 N.C. 6, 82 S.E. 949; Nash v. Royster, 189 N.C. 408, 127 S.E. 356.

Plaintiff's intestate, Ed C. Williams, together with other employees of the Garysburg Manufacturing Company, were going from Burgaw, Pender county, to Long Creek, a distance of about 10 miles, in a truck belonging to the manufacturing company, when a collision occurred between said truck and a passenger train of the Atlantic Coast Line Railroad Company, resulting in the death of plaintiff's intestate and injuring several others.

The nonsuit in favor of the manufacturing company was allowed upon the theory that the truck in question had been borrowed by plaintiff's intestate and was being operated under his direction and control at the time of the collision by one Connie Williams. Defendant contends that plaintiff's intestate was engaged in transporting laborers from the Long Creek section to Burgaw on his own responsibility, and that it was distinctly understood between them that no liability should attach to the defendant manufacturing company by reason of the use of its truck. There was evidence tending to support this view of the case.

Plaintiff, on the other hand, takes the position that the laborers were being transported by the defendant manufacturing company and for its benefit. As bearing on this phase of the case, Connie Williams testified as follows:

"I live at Long Creek, and Ed Williams lived at Long Creek.

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