Zachary v. North Carolina R. Co.
| Decision Date | 09 November 1911 |
| Citation | 72 S.E. 858,156 N.C. 496 |
| Parties | ZACHARY v. NORTH CAROLINA R. CO. |
| Court | North Carolina Supreme Court |
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.
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 direct a verdict for defendant.
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:
Wilson & Ferguson and John K. Graves, for appellant.
John A. Barringer, G. S. Bradshaw, and Thomas H. Calvert, for appellee.
There are 23 assignments of error in the record; none of them relating to the reception or rejection of evidence. These assignments present for consideration the three principal contentions of the defendant: (1) That 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 not apply, and that the case was properly tried under the state law. The act applies only to a carrier by railroad while engaging in interstate commerce, and only to an employé "suffering injury while he is employed by such carrier in such commerce."
The point was not discussed on the argument or in the briefs, but it occurs to us that the North Carolina Railroad is not an interstate railroad; nor is that corporation itself engaged in interstate commerce. Its tracks and property lie wholly within the state of North Carolina, extending from Goldsboro to Charlotte. It is true the tracks and property are leased to the Southern Railway Company, a corporation of another state, that is engaged in both inter and intra state commerce, but that does not necessarily make the North Carolina Railroad Company an interstate carrier, within the meaning of the act of Congress, any more than A. would be made a wholesale grocery merchant, because he had leased his warehouse to B., who conducted such business in it, and had assumed responsibility for B.'s debts. The corporation, known as the North Carolina Railroad Company, is in existence, has its officers and directors, receives its annual rents from its lessee, the Southern Railway Company, and distributes them among its stockholders; but it is not an interstate carrier, within the meaning of the federal act.
It is also true that this court has held, in Logan v. Railroad, 116 N.C. 941, 21 S.E. 959, that this lessor is responsible for all acts of negligence of its lessee occurring in the conduct of business on the lessor's road; it matters not what kind of commerce the lessee is engaged in at the time. But that is because a railroad corporation cannot escape its responsibility by leasing its road. It is still liable for its lessee's acts, of commission and omission, whether they occur in interstate or intrastate commerce, although the lessor is not actually engaged in either
We do not think the federal act applies, for the reason that the deceased at the time when killed was not employed by the Southern Railway, the lessee, in interstate commerce. At the time he was killed, the deceased was not engaged in an act of any kind of commerce. He was on his way to his boarding house for a purpose entirely personal to himself, and not on the carrier's business. The deceased had oiled and prepared his engine to make the run from Selma to Greensboro, points within this state. The engine was stationary and had not been attached to any cars. The deceased was on his way to his boarding house, and was killed by a local switch engine, which was then unattached to any cars, but going for two cars from Pinners Point, Va., for the purpose of attaching them to the train that engine 862 was expected to pull. So far as the evidence shows, the deceased nor his engine had ever been engaged in any other work, except this local run from Selma to Greensboro. If the contention of the defendant can be maintained, then it follows that all employés of railways that do an interstate business are necessarily employed in interstate commerce. The ticket seller, who sells a ticket to a traveler going beyond the state, the car cleaner who cleans the car he is to travel in, the man who loads the engine tender with coal which is to pull him, and the gatekeeper who examines his ticket and passes him onto his car, are all employed in interstate commerce.
The employer's liability act of 1906 (Act June 11, 1906, c 3073, 34 Stat. 232 [U. S. Comp. St. Supp. 1909, p. 1148]) was declared repugnant to the Constitution, because by its...
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