Williams v. Carolina & N. W. R. Co

• Decision Date: 07 May 1907
• Court: North Carolina Supreme Court
• Parties: WILLIAMS et al. v. CAROLINA & N. W. R. CO.

57 S.E. 216

144 N.C. 498

WILLIAMS et al.

v.CAROLINA & N. W. R. CO.

Supreme Court of North Carolina.

May 7, 1907.

1. Appeal — Separate Appeals in Related Cases.

Where causes of action which could not be merged under Revisal 1905, § 469, providing that the plaintiff may unite in the same complaint several causes of action under certain conditions, and in which the plaintiffs, not being united in interest, could not be joined in the same action under section 411, providing that of the parties to the action those who are united in interest must be joined as plaintiffs or defendants, were tried together merely for convenience, and were not united or consolidated bv order of the court into one action, there should have been separate appeals.

2. Carriers—Duty to Transport—Actions-Damages.

Where a person intending to take passage on a train presents himself at a flag station a reasonable time before the train is due. and by reason of the negligence of the engineer in not keeping a proper lookout he failed to see his signal and stop the train, such person is entitled to the actual damages resulting from the failure to stop the train, but not punitive damages.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1082, 1083.]

3. Same.

Where a person intending to take passage on a train presents himself at a flag station a reasonable time before the train is due, and the engineer sees him and willfully refuses to stop, such person is entitled to recover punitive damages.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, § 1083.]

4. Same—Liability—Contract or Tort.

Where a carrier negligently fails to stop for a person desiring to take passage, such person is entitled to recover the damages resulting, whether the action is brought for the breach of the contract or for the tort.

5. Same — Duty to Transport — Actions — Damages.

Where a carrier negligently fails to stop for a person desiring to take passage, such person is not bound to wait till the next train, but, having walked to the next station, is entitled to recover any damages by reason thereof.

Appeal from Superior Court, Gaston County; Peebles, Judge.

Two actions, one by H. S. Williams and the other by L. L. Todd, against the Carolina & Northwestern Railroad Company, From a judgment for defendant, plaintiffs appeal. Reversed, and new trial granted.

This action was brought by the plaintiffs to recover damages from the defendant for failing to stop its train and carry them from Harden Mills, a station on the defendant's road, to High Shoals, another station a mile and a half away. The train was a mixed one, composed of an engine and freight cars, and a caboose in which passengers were carried. Harden Mills was not a regular, but a flag, station, at which stops were made to take on passengers upon proper signals. An action was also brought by L. L. Todd, who was left at Harden Mills at the same time the plaintiff Williams was, and the two actions, by consent, were tried together. The plaintiffs were in the store of one Costner at Harden Mills when the train blew for the station. They and Costner went out and signaled the train to stop. There was evidence tending to show that the signals were those required by the rules of the company. The plaintiffs alleged and offered evidence tending to show that the engineer and fireman actually saw the signals and failed to stop the train for them to get on, and that, if they did not see them, they could, by keeping a proper lookout, have seen the signals in time to have stopped the train. There was also some evidence that the signals were net given as required. The plaintiffs walked to High Shoals. The next train from Harden Mills to High Shoals passed in the after noon of that day, some time after the freight train. The plaintiffs requested the court to charge as follows: "If the jury find from the evidence that the defendant negligently failed to stop its train for the plaintiffs at the time and place in question, then the plaintiffs are entitled to recover nominal damages, even if the plaintiffs sustained no actual damages. And, if the jury find that the plaintiffs were, by the negligence of the defendant, put to any inconvenience, the jury should take such inconvenience into consideration in awarding such compensatory damages as the jury should find the plaintiffs have sustained." This instruction was refused, and the plaintiffs excepted. The court charged the jury as follows: "(1) If the plaintiffs have satisfied you by the greater weight of the evidence that they made a signal to the engineer to stop at the usual place and in the usual manner of making signals, and that the signal was made In time for the engineer to have stopped his train at the station or the rear end of it, at the place where the passengers usually got on, or, further, that the engineer saw the signal and recognized that it was a signal for him to stop, and he willfully and intentionally failed to stop and ran by, you will answer the first and third issues 'Yes'; but, if the plaintiff has failed to satisfy you of these facts, it is your duty to answer the first issue and the third issue 'No.' If you answer them 'No, ' you need not trouble yourselves about the others at all, as that ends the case. (2) If the plaintiffs had sued on contract, as I stated before, they had a right to do, why, then, the negligent failure on the part of the engineer would have given them the right to recover, because it would have been wrong in the railroad company to have neglected to see the signal. It would have been a breach of the contract which it had with the people generally; and any failure to perform that contract would have entitled the plaintiffs to at least nominal damages. But the plaintiff has elected not to sue on contract. In this case he cannot recover unless he satisfies you that the engineer saw the signal, recognized it, and Intentionally and willfully failed to obey it" The court also charged, upon the measure of damages, that the plaintiffs could not recover any damages for having walked to High Shoals; that they should have waited at Harden Mills for the next train which passed in the afternoon, and, if they had done so, they could have recovered for the delay and inconvenience in doing so, but that they had shown no actual damages, and the jury, if they found that the engineer had willfully passed the station and left the plaintiffs at Harden Mills, would give them only nominal damages, and if the engineer did see the signals, but willfully and intentionally disregarded them and passed on, they might award punitive damages in addition to the nominal damages. The plaintiffs duly excepted to the charge. The jury returned a verdict against the plaintiffs on all the issues, finding thereby that they were not entitled to recover at all. Judgment was entered accordingly, and the plaintiffs appealed.

A. G. Mangum and S. B. Sparrow, for appellants.

O. F. Mason, G. W. Wilson, and J. H. Marion, for appellee.

WALKER, J. (after stating the case). There should have been separate appeals in this case.' The actions were tried together merely for convenience, and were not united or consolidated in the sense that they became, by the order of the court, one action. They could not be thus merged under Revisal 1905, § 469. The plaintiffs were not united in interest, but alleged separate grievances, and could not therefore be joined in the same action under Revisal 1905, § 411. Logan v. Wallis, 76 N. C. 416; Syme v. Bunting, 86 N. C. 175. The verdict was substantially separate as to each plaintiff, and the judgment and appeals should have corresponded; two cases being constituted here. But we will pass by this objection, without intending, though, to make a precedent of the case in this respect, and proceed to consider the case upon its merits.

If the plaintiffs went to the usual place for receiving passengers a reasonable time before the arrival of the train, and were able, ready, and willing to pay their fare, they were entitled to be carried to the next station. Phillips v. Railway, 124 N. C. 123, 32 S. E. 388, 45 L R. A. 163; Railroad v. Williams, 140 Ill. 275, 29 N. E. 672; 1 Fetter on Carriers, § 228. If they gave the requisite signal, it was the duty of the engineer to stop the train so that they might take passage on it. If he did not see the plaintiffs by reason of mere negligence in not keeping a proper lookout ahead of his train, the defendant would be liable only for actual damages resulting from the failure to stop the train; but, if he did see them and willfully refused to stop for the purpose of receiving them on the train as passengers, the defendant would be liable to punitive damages in addition to those which are merely compensatory, if the jury should see fit to award them. This was expressly decided in Thomas v. Railway, 122 N. C. 1005, 30 S. E. 343, in which it is said: "When the plaintiff presented himself at the flag station, a reasonable time before the arrival of the train, for the purpose of procuring passage, and by reason of the absence of the agent and the failure of the engineer to see the plaintiff's signal the train...