Wimberley v. Atlantic Coast Line R. Co.

• Decision Date: 12 November 1925
• Docket Number: 60.
• Citation: 130 S.E. 116,190 N.C. 444
• Parties: WIMBERLEY v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

130 S.E. 116

190 N.C. 444

WIMBERLEY v. ATLANTIC COAST LINE R. CO.

No. 60.

Supreme Court of North Carolina

November 12, 1925

Appeal from Superior Court, Nash County; Sinclair, Judge.

Action by George L. Wimberley, Jr., administrator, against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. No error.

Contributory evidence elicited on cross-examination only affects credibility of witnesses.

Civil action arising under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), and tried upon the following issues:

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

(2) Did the plaintiff's intestate by his own negligence contribute to his injury? Answer: No.

(3) Did the plaintiff's intestate voluntarily assume the risk incident to performing the work in the manner in which he undertook to do it? Answer: No.

(4) What damages, if any, is plaintiff entitled to recover? Answer: $15,000.

(5) What part of the recovery, if any, is the widow entitled to? Answer: $5,000.

(6) What part, if any, is the son entitled to? Answer $10,000."

From a judgment on the verdict in favor of plaintiff, the defendant appeals, assigning errors.

Thos W. Davis and V. E. Phelps, both of Wilmington, and Spruill & Spruill, of Rocky Mount, for appellant.

Jos. B. Ramsey, of Rocky Mount, and John Kerr, Jr., of Warrenton, for appellee.

STACY C.J.

It is alleged in the complaint and admitted by the answer that the defendant is a common carrier by railroad, engaged in interstate commerce, and that plaintiff's intestate was employed by the defendant in such commerce at the time of his injury and death. The case, therefore, is one arising under the federal Employers' Liability Act, and it has properly been tried under that act. Shanks v. Del. R. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L. R. A. 1916C, 797; Capps v. Atlantic Coast Line R. Co., 183 N.C. 181, 116 S.E. 533. The deceased employee left a widow and one small son him surviving, and his administrator, or personal representative is prosecuting this suit on behalf of these persons, who fall in the first class of beneficiaries under the statute. Horton v. Railroad, 175 N.C. 472, 95 S.E. 883; Dooley v. Seaboard Airline R. Co., 163 N.C. 463, 79 S.E. 970, L. R. A. 1916E, 185.

The defendant's chief assignment of error, or the one most strongly urged on the argument and in its brief, is the exception addressed to the refusal of the court to grant its motion for judgment as of nonsuit, made as permitted by C. S. § 567, at the close of plaintiff's evidence. There was no evidence offered by the defendant. With reference to the rule of procedure applicable, authorized by statute in this jurisdiction, it is uniformly held that on a motion for involuntary nonsuit, considered with us as equivalent to a demurrer to the evidence, the facts making for the plaintiff's claim, and which tend to support his cause of action, must be taken as true and construed in the light most favorable to him. Nash v. Royster, 189 N.C. 410, 127 S.E. 356; Lamb v. Railroad, 179 N.C. 623, 103 S.E. 440.

Viewing the evidence under this rule and in its most favorable light for the plaintiff, we find the following facts sufficiently established, or as reasonable inferences to be deduced from the testimony of the witnesses:

(1) Plaintiff's intestate, R. C. Murray, was killed about 4 a. m., January 21, 1921, while in the discharge of his duties as brakeman on the defendant's north-bound freight train No. 212, composed of a Pacific type engine, No. 1558, tender, and 75 cars, as it approached Rennert's Siding, approximately 20 miles south of Fayetteville, N. C., on an interstate run from Florence, S. C., to points as far north as Rocky Mount, N. C.

(2) The freight train in question was running on a "time order," ahead of No. 86, one of the defendant's fast passenger trains, and the engineer of the freight train, with only "running time and clearance time," and probably a few minutes to spare, was preparing to take the spur track at Rennert's Siding, so that No. 86 might pass at this point.

(3) It was the duty of plaintiff's intestate to throw the switch in order that the freight train might clear the track for the oncoming passenger train.

(4) Plaintiff's intestate was riding on the engine with the engineer; he knew of the order to clear the main line for No. 86, and the time within which the rules of the company required this to be done; he said to the engineer as they came within a mile and a half or more of Rennert's Siding, "When we get there I will go out and set the switch so you will not have to stop;" to which the engineer replied, "Well, I will appreciate it." This was equivalent to an order from the engineer to throw the switch.

(5) Plaintiff's intestate left the cab of the engine from the fireman's side, walked along the narrow foot board about 14 inches wide, leading from the cab to the pilot of the engine, and which is provided for going along that way and is protected by a small hand rail, but he fell and was killed by the train before it reached the switch.

(6) At the time plaintiff's intestate left the cab to go out over the engine and across the pilot, the train was running at a rate of 15 or 18 miles an hour, and was about a quarter of a mile from Rennert's Siding. He expected to jump from the pilot to the ground, run ahead of the moving train, and open the switch so that it could take the siding without coming to a full stop. This was the customary method of throwing switches for these trains, and the officials of the company knew of its practice, but the evidence is conflicting as to whether such practice was in violation of the rules of the company.

(7) There was evidence from which the jury could infer that after plaintiff's intestate left the cab of the engine, the speed of the train was reduced from 18 miles per hour to 5 miles per hour within a comparatively short distance; and from this circumstance plaintiff contended that his intestate fell from the engine by reason fo a sudden jerk or jolt, though there was direct evidence in denial of any unusual jar of the train.

(8) It was further in...