Transou v. . Director General

Stacy, J. Considering tbe evidence in its most favorable light for tbe plaintiff, tbe accepted position on a motion to nonsuit, we think tbe case should have been submitted to tbe jury. True, no one testified with exactness as to bow tbe deceased met bis death. But tbe objective and physical facts speak louder than witnesses. Can there be any doubt of tbe truth of tbe allegation that tbe moving train, tbe demolished truck and tbe torn up platform all played a part in producing tbe injury which resulted in Transou’s death? It would seem that an affirmative answer might be entirely permissible, and not altogether unlikely. At least, such is a reasonable inference arising from tbe attendant conditions and surrounding circumstances. Maybe tbe jury will take a different view of tbe matter, and maybe not. At any rate, upon tbe record- — it appearing that tbe deceased was at tbe time engaged in tbe discharge of bis duties as a brakeman — we think tbe question of liability is one for tbe jury under proper instructions from tbe court. But, of course, we express no opinion as to bow it should be fo.und. Southern Ry. Co. v. Diseker, 81 S. E., 269. In Brown v. Missouri K. & T. Ry. Co., 212 S. W., 27, a case somewhat similar to tbe one at bar, tbe Supreme Court of Missouri states tbe law as follows: “Railroad companies will not be held to have exercised ordinary care to provide reasonably safe conditions for their employees to do their work when they permit standpipes, telegraph poles, fences, buildings, and other structures to be maintained so close to their tracks that employees being on tbe outside of their moving cars or engines, in tbe performance of their duties, are crushed by them,” and to which should be added, “unless due care is used and proper means are employed to prevent such injuries.” To like effect are our own decisions. Heilig v. R. R., 152 N. C., 469; Williams v. R. R., 168 N. C., 363, and cases there cited. Tbe question has been so fully discussed in Williams v. R. R. that we deem it unnecessary to repeat here what has so recently been said there. See, also, Virginia Ry. Co. v. Halstead, 258 Fed., 428, and Sanderson v. Boston & M. R. R., 101 Atlantic, 40, cases directly in point. With tbe case going back for a new trial, we refrain from ¿further discussion, as we do not wish to prejudice tbe rights of any of tbe parties. *405 Tbe judgment of nonsuit as to tbe Southern Railway Company will be sustained under authority of tbe recent decision of the United States Supreme Court in Mo. Pac. R. R. Co. v. Ault, decided 1 June) 1921, and reported in tbe Advanced Opinions of that Court at page 647, No. 16, 1 July, 1921. But as to tbe Director General of Railroads, tbe judgment will be reversed and a new trial ordered. Affirmed as to tbe Southern Railway Company. Reversed as to tbe Director General of Railroads.