Zachary v. North Carolina R. Co

Citation72 S.E. 858, 156 N.C. 496
Case DateNovember 09, 1911
CourtUnited States State Supreme Court of North Carolina

72 S.E. 858
156 N.C. 496

ZACHARY
v.
NORTH CAROLINA R. CO.

Supreme Court of North Carolina.

Nov. 9, 1911.


1. Commerce (§ 27*)—Carriers—RailroadsInterstate Commerce.

A railroad corporation whose tracks lay wholly within a certain state did not, by leasing its tracks to a railroad corporation engaged in interstate commerce, itself engage in interstate commerce.

[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]

2. Railroads (§ 259*)—Operation—Leases-Liability op Lessor.

The lessor of a railroad is responsible for all negligence of its lessee in the conduct of the business of the road,-regardless of whether such acts occur in intrastate or interstate commerce.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 802-816; Dec. Dig. § 259.*]

3. Commerce (§ 27*)—Interstate Commerce-Employer's Liability.

A fireman, whose run was wholly within the state, having oiled and prepared his engine, which was not then attached to any train, was killed while crossing the tracks to his boarding house for a personal purpose. His engine was to have hauled some freight, which was interstate commerce, but the road upon which it operated was not an interstate carrier, though the lessee of the road was engaged in such commerce. Held, that the federal employer's liability act (Act April 22, 1908, c. 149, 35 Stat. 05 [U. S. Comp. St. Supp. 1909, p. 1171]), which applies only to a carrier by railroad while engaged in interstate commerce, and only to an employe suffering injury while employed in such commerce, did not apply, for the fireman was not then engaged in interstate commerce.

[Ed. Note.—For other cases, see Commerce, Dec. Dig. § 27.*]

4. Railroads (§ 282*)—Injuries to Persons on Tracks—Actions—Evidence.

In an action for the death of a locomotive fireman, killed while crossing the tracks in a railroad yard, going from his engine to his boarding house by the usual path, evidence of negligence creating a liability for his death held sufficient to go to the jury.

[Ed. Note.—For other cases, see Railroads, Dec. Dig. § 282.*]

5. Railroads (§ 282*)—Injury to Licensee-Contributory Negligence—Question for Jury.

Where a fireman, after cleaning and oiling his engine, which was not yet attached to the train, left it, and in crossing the tracks to his boarding house was struck and killed by a switch engine, moving, tender forward, without any light or flagman, and another engine nearby was making a very loud noise, and the night was very dark, the fireman was not, as a matter of law, guilty of contributory negligence; it being the custom of the employes to cross the tracks as he did.

[Ed. Note.—For other cases, see Railroads, Dec. Dig. § 282.*]

6. Trial (§§ 159, 16S*)—Taking Case from Jury—Nonsuit.

Where, in an action for the death of one killed by a train, it appears from the evidence of the plaintiff that his intestate was guilty of contributory negligence, the court may grant a nonsuit, or direct a verdict for defendant.

[Ed. Note.—For other cases, see Trial, Dec. Dig. §§ 159, 168.*]

7. Railroads (§ 282*)—Injuries to Persons on Tracks—Look and Listen Rule.

While a railroad employe' must use reasonable care in crossing the railroad tracks, his failure to look and listen before crossing such tracks, in the performance of his duty, is not, as a matter of law, contributory negligence.

[Ed. Note.—For other cases, see Railroads, Dec. Dig. § 282.*]

Appeal from Superior Court, Guilford County; Daniels, Judge.

Action by James A. Zachary, as administrator of Herbert H. Burgess, deceased, against the North Carolina Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The action was for damages for the negligent killing of Herbert H. Burgess, a fireman in the employment of the Southern Railway Company, the lessee of the defendant, at Selma, N. C, April 29, 1909.

These issues were submitted to the jury:

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

"(2) Did the intestate of the plaintiff contribute to his death by his own negligence? Answer: No.

"(3) What amount, if any, is the plaintiff entitled to recover? Answer: $2,000."

Wilson & Ferguson and John K. Graves, for appellant.

John A. Barrlnger, G. S. Rradshaw, and Thomas H. Calvert, for appellee.

BROWN, J. There are 23 assignments of error in the record; none of them relating to

[72 S.E. 859]

the reception or rejection of evidence. These assignments present for consideration the three principal contentions of the defendant: (1) Thai the act of Congress of April 22, 1908, known as the federal employer's liability act, applies, and that the cause should have been determined under the provisions of that act. (2) That there is no sufficient evidence of negligence. (3) That, in any view of the evidence, the intestate was guilty of such contributory negligence as, under the law of this state, bars recovery.

Does the federal act apply?

Plaintiff's intestate was fireman of engine 862, which was standing at the time of the occurrence on the cinder track at Selma, N. C. He had been oiling his engine and preparing it to take a train from Selma to Greensboro, which was made up at Selma. He started across the tracks to go to his boarding house before leaving, and was struck and killed by a local switch engine, which at the time was backing down the main line for the purpose of cutting out two cars, which had come in from Pinners Point, Va., on train 72, for transportation to Greensboro, N. C. Train 72 is known as the Pinners Point train, via Selma, to Goldsboro, N. C. Engine 862 was not attached to any cars at the time, but was being prepared to haul a train from Selma to Greensboro, composed of miscellaneous cars. All cars brought in from Pinners Point, Va., by train 72, for points west of Selma, are included in this train. We are of opinion that the federal act does...

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13 practice notes
  • Renn v. Seabd. Air Line Ry, (No. 259.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 17, 1915
    ...Vt. R. Co. v. White, 238 U. S. 507, 35 Sup. Ct. 865, 59 L. Ed. 1433, when considered in connection with Zackary v. North Carolina R. R., 156 N. C. 496, 72 S. E. 858, Horton v. S. A. L. Ry., 162 N. C. 424, 78 S. E. 494, Tilghman v. S. A. L. Ry., 167 N. C. 163, 83 S. E. 315, 1090, Bolick v. R......
  • Inge v. Seabd. Air Line Ry. Co, (No. 88.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 17, 1926
    ...See Sherrill v. Railroad, 140 N. C. 252, 52 S. E. 940; Inman v. Railroad, 149 N. C. 123, 62 S. E. 878; Zachary v. Railroad, 156 N. C. 503, 72 S. E. 858. In Railroad v. Koennecke, 239 U. S. 352, 36 S. Ct. 126, 60 L. Ed. 324: "We see equally little ground for the contention that there wa......
  • Hinson v. Atlanta & C. Air Line Ry. Co, (No. 444.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 6, 1916
    ...by all the employés to the knowledge and with the implied permission of the defendant for 18 years, since 1896. In Zachary v. Railroad, 156 N. C. 496, 72 S. E. 858, where an employé was killed in crossing a track on the railroad yard (which was reversed on writ of error, but not on the ques......
  • Williams v. Randolph & C. Ry. Co, (No. 332.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 20, 1921
    ...455, 42 S. E. 911; Maury v. Railroad, 139 N. C. 388, 52 S. E. 124; Parker v. Railroad. 150 N. C. 433, 64 S. E. 186; Zachary v. Railroad, 156 N. C. 496, 72 S. E. 858; Railroad v. Zachary, 232 U. S. 258, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159; and there are many others since, am......
  • Request a trial to view additional results
13 cases
  • Renn v. Seabd. Air Line Ry, (No. 259.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 17, 1915
    ...Vt. R. Co. v. White, 238 U. S. 507, 35 Sup. Ct. 865, 59 L. Ed. 1433, when considered in connection with Zackary v. North Carolina R. R., 156 N. C. 496, 72 S. E. 858, Horton v. S. A. L. Ry., 162 N. C. 424, 78 S. E. 494, Tilghman v. S. A. L. Ry., 167 N. C. 163, 83 S. E. 315, 1090, Bolick v. R......
  • Inge v. Seabd. Air Line Ry. Co, (No. 88.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 17, 1926
    ...See Sherrill v. Railroad, 140 N. C. 252, 52 S. E. 940; Inman v. Railroad, 149 N. C. 123, 62 S. E. 878; Zachary v. Railroad, 156 N. C. 503, 72 S. E. 858. In Railroad v. Koennecke, 239 U. S. 352, 36 S. Ct. 126, 60 L. Ed. 324: "We see equally little ground for the contention that there wa......
  • Hinson v. Atlanta & C. Air Line Ry. Co, (No. 444.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 6, 1916
    ...by all the employés to the knowledge and with the implied permission of the defendant for 18 years, since 1896. In Zachary v. Railroad, 156 N. C. 496, 72 S. E. 858, where an employé was killed in crossing a track on the railroad yard (which was reversed on writ of error, but not on the ques......
  • Williams v. Randolph & C. Ry. Co, (No. 332.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 20, 1921
    ...455, 42 S. E. 911; Maury v. Railroad, 139 N. C. 388, 52 S. E. 124; Parker v. Railroad. 150 N. C. 433, 64 S. E. 186; Zachary v. Railroad, 156 N. C. 496, 72 S. E. 858; Railroad v. Zachary, 232 U. S. 258, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159; and there are many others since, am......
  • Request a trial to view additional results

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