Russ v. Atlantic Coast Line Railroad

Stacy, C. J. The rights and duties of the parties are to be measured by the law of Virginia. Harrison v. R. R., 168 N. C., 382, 84 S. E., 519. Matters of procedure are controlled by the law of the forum. Wise v. Hollowell, 205 N. C., 286, 171 S. E., 82. In other words, the lex loci furnishes the standard of conduct; the lex fori the method and manner of trial. Clodfelter v. Wells, 212 N. C., 823, 195 S. E., 11. The one is substantive; the other procedural. “The actionable quality of the defendant’s conduct in inflicting injury upon the plaintiff must be determined by the law of the place where the injury was done. . . . The law of the forum governs as to matters affecting the remedy,” etc. Howard v. Howard, 200 N. C., 574, 158 S. E., 101. Contributory negligence and the doctrine of the “last clear chance” are both parts of the Virginia law. Hawkins v. Brickhouse, 172 Va., 1; Barnes v. Ashworth, 154 Va., 218. The plaintiff’s own evidence, under the law of the forum, makes out a clear case of contributory negligence, Lemings v. R. R., 211 N. C., 499, 191 S. E., 39, excludes the applicability of the “last clear chance,” *717 Reep v. R. R., 210 N. C., 285, 186 S. E., 318, and bars a recovery. It shows that the plaintiff was sitting on the end of a crosstie with his elbows on his knees and his head bent forward. Even if the engineer could or should have seen the plaintiff, there was nothing to indicate his obliviousness or that he would not heed the warning of the train’s approach. Redmon v. R. R., 195 N. C., 764, 143 S. E., 829. No doubt the engineer did see the plaintiff and assumed, as he had the right to do up to the very moment of the impact, that he would use his faculties for his own protection and leave the track in time to avoid injury. Davis v. R. R., 187 N. C., 147, 120 S. E., 827. It is contended that in Yirginia, unlike the requirement here, the engineer was under no duty to keep a lookout for the plaintiff in the circumstances described by the record. N. & W. Ry. v. Stegall’s Admrs., 105 Va., 538. However this may be, in any event the judgment of nonsuit was correctly entered. Affirmed.