Hinnant v. Tidewater Power Co.

Clarkson, J. The statutory law in reference to actions of this character is as follows: C. S., 160. “When the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured party *292 bad lived, bave entitled him to an action for damages therefor, tbe person or corporation that would bave been so liable, and bis or tbeir executors, administrators, collectors or successors shall be liable to an action for damages, to be brought within one year after such death, by tbe executor, administrator or collector of tbe decedent; and this notwithstanding tbe death, and -although the wrongful act, neglect or default causing tbe death amounts in law to a felony. Tbe amount recovered in such action is not liable to be applied as assets, in tbe payment of debts or legacies, but shall be disposed of as provided in this chapter for the distribution of personal property in case of intestacy.” C. S., 3465. “Any servant or employee of any railroad .company operating in this State who shall suffer injury to his person, or the personal representative of any such servant or employee who shall have suffered death in the course of his services or employment with such company, by the negligence, carelessness or incompetency of any other servant, employee, or agent of the company, or by any defect in the machinery, ways or appliances of the company, shall be entitled to maintain an action against such company. Any contract or agreement, express or implied, made by any employee of such company to waive the benefit of this section shall be null and void.” C. S., 3466. “Every common carrier by railroad shall be liable in damages to any person suffering injury while he is employed by such carrier, or in case of the death of such employee, to his or her personal representative, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engine, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” C. S., 3467. “In all actions hereafter brought against any common carrier by railroad to recover damages for personal injury to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, however, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for; the safety of employees contributed to the injury or death of such employee.” C. S., 3468. “In any action brought against any common carrier under or by virtue of any of the provisions of this article to recover damages for injuries to, or the death of any of its employees, such *293 employee shall not be held to have assumed the risk of bis employment in any case where the violation of such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee, or the death or injury was caused by negligence.” The defendant’s counsel, in their able and analytical brief, say, “After a more careful examination, we think the salient points which we desire to present to the Court may be treated under a comparatively few heads.” The first position taken by defendant in' its argument here and brief is that the plaintiff — on all the evidence — should have been nonsuited. The defendant contends “What is negligence is a question of law, and when the facts are admitted or established is for the Court.” Burdick on Torts (2 ed.), 429. In Russell v. R. R., 118 N. C., 1111, it is stated thus: “Where the facts are undisputed and but a single inference can be drawn from them, it is the exclusive duty of the Court to determine whether the injury has been _ caused by the negligence of one or the concurrent negligence of both of the parties.” Stewart v. R. R., 137 N. C., 690; Ramsbottom v. R. R., 138 N. C., 41; Taylor v. Stewart, 172 N. C., 205; Taylor v. Lumber Co., 173 N. C., 112. We think this contention as to the law correct, but in the instant case there are certain facts tending to show negligence on the part of defendant that are not admitted or established. Upon a motion to nonsuit, the evidence in the case is construed in the light most favorable to the plaintiff. At the close of plaintiff’s testimony defendant moved to nonsuit, and this motion was renewed at the close of all the testimony. We think the court below was correct in refusing to nonsuit plaintiff. Nowell v. Basnight, 185 N. C., 148. It is undisputed in the pleadings or evidence in the case that plaintiff’s intestate was- an employee of defendant, a motorman running an electric passenger train from Wilmington to Wrightsville Beach, and was killed in a head-on collision (died the next morning) with a baggage or garbage car of defendant, operated by one Ed Allen, on the trestle between Harbor Island and Wrightsville Station, about 6:30 o’clock on the morning of 25 August, 1920. In Kinney v. R. R., 122 N. C., 964, it is said: “That two passenger trains in open daylight should come together with such terrific force is evidence of negligence. If the doctrine of res ipsa loquitur ever applies, it would certainly do so in such a case. . . . This was peculiarly a case for the jury.” We think the court below in the charge stated the law correctly. “It is the law in North Carolina that where it has been proved or is admitted that the death of an employee of a railroad is the result of a head-on collision in the daytime, the law itself raises a presumption *294 tbat the death was caused by the negligence of the defendant. That presumption, however, is not an irrebuttable presumption. It is a presumption which may be rebutted by the facts and circumstances as they appear in the evidence, if the jury find that the facts and circumstances actually do rebut that presumption which arises by law. The fact that there was a head-on collision between two trains in the daytime makes what the law calls a prima facie case, from which the plaintiff would be entitled to recover if .nothing else appeared.” McDowell v. R. R., 186 N. C., 571; Saunders v. R. R., 185 N. C., 290; Harris v. Mangum, 183 N. C., 235; White v. Hines, 182 N. C., 288; R. R. v. R. R., 157 N. C., 369; Hemphill v. Lumber Co., 141 N. C., 488; Stewart v. R. R., supra, 689; Wright v. R. R., 127 N. C., 229. This doctrine is fully discussed in 4 Labatt’s Master and Servant (2 ed.), sec. 1601. See note 10. "We do not think that defendant can complain. The court below, at the request of the defendant, gave the .following instruction: “As a general rule, injury to passengers or employees from a collision by a common carrier gives rise to prima facie evidence of negligence. The doctrine or principle of res ipsa loquitur — that is a Latin expression, .meaning the thing speaks for itself — applies, but this only means that proof, or admission, of the collision warrants the inference of negligence — that is, it furnishes circumstantial evidence of negligence to be weighed, not necessarily to be accepted as sufficient; it calls for explanation or rebuttal, not necessarily that it requires it. It makes a case to be decided by the jury, but not such a case as forestalls the verdict. So here the plaintiff having charged, and the defendant having admitted, that the injury to plaintiff’s intestate was caused by a collision between the car which was driven by plaintiff’s intestate and the car operated by Allen, that is evidence from which the jury might infer — if they felt that the evidence justifies it — that the defendant was guilty of negligence, if nothing else appears. But if the circumstances of the collision are shown, and from these circumstances it appears that the injury was caused, not by the defendant, but by the negligent act of the plaintiff’s intestate himself, then the prim.a facie case arising from the collision is rebutted, and the jury should answer the first issue ‘No.’ The presumption of negligence herein considered is, of course, a rebut-table presumption. It imports merely that the plaintiff has made out a prima facie case, which entitles him to a favorable finding, unless the defendant introduces evidence to meet and offset its effect. And, of course, where all the facts attending the injury are disclosed by the evidence, and nothing is left to inference, no presumption can be indulged ; the doctrine of res ipsa loquitur would then have no application.” *295 On the question of negligence and proximate cause, the court below charged the jury as follows: “The question is: Was the plaintiff’s intestate killed by the negligence of the defendant ? Before the plaintiff can recover in this action, you must find by the greater weight of the evidence not only that he was injured and died from the result of the injury, but that he was injured by the negligence of the defendant. Negligence is the failure to do that which a reasonably prudent man would have done under the circumstances, or the omission to use means reasonably necessary to avoid or prevent injury to others. In this ease, in order for the plaintiff to recover, you must also find that defendant is guilty of what the law classes actionable negligence — that is, negligence which entitles the plaintiff to recover in court; and to establish actionable negligence, the plaintiff is required to show by the greater weight of the evidence that there was failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff under the circumstances in which they were placed; proper care being that degree of care which a prudent man would exercise under like circumstances and charged with a like duty. You will also have to find by the greater weight of the evidence that such negligent breach of duty was the proximate cause, or one of the contributing proximate causes of the injury which resulted in the death of plaintiff’s intestate — that is, the cause which produced the result in continuous sequence, and without which it would not have occurred, and one from which a man of ordinary prudence would have foreseen that some such result was probable under all the facts as they existed. You not only have to find that the injury was the result of negligence upon the part of the defendant, but you have to go further and find that that negligence'was the proximate cause or one of the proximate causes of plaintiff’s intestate’s death. In a case of this character there may be one proximate cause of the injury, or there may be more than one. There may be an indefinite number of causes which resulted in the death which are proximate causes, and it is for you to say, when you come to this question, whether or not you find that the defendant was guilty of negligence in occasioning this injury, and if such negligence was the proximate cause or any one of the contributing proximate causes of his death. Proximate cause is that which, in natural and continuous sequence, unbroken by any new and independent cause, produces the event, and without which the event would not have occurred. That is the legal definition of proximate cause.” We think the charge, under the facts and circumstances of the case, is in accord with the decisions of this Court. Drum v. Miller, 135 N. C., 215; Ramsbottom v. R. R., supra; Fisher v. New Bern, 140 N. C., 512; Harton v. Telephone Co., 141 N. C., 455; Ward v. R. R., 161 N. C., 184; Paul v. R. R., 170. *296 N. C., 231; Taylor v. Lumber Co., supra, 116-117; Lea v. Utilities Co., 175 N. C., 464; Stultz v. Thomas, 182 N. C., 473; 29 Cyc., pp. 415-488. The plaintiff contends in his argument that “The defendant admits in its answer that a coemployee of Hinnant was talking to him and distracting his attention from the garbage car. This is admitted in the pleadings, and being so established, if found to be one of the contributing proximate causes, liability follows. ¥e say, as a matter of law, this fact being that the plaintiff was entitled to have the court instruct the jury, if they believed the evidence, to answer the first issue ‘Yes.’ ” On the other hand, the defendant contends: “The defense was founded chiefly on the proposition that, even though the defendant might have been guilty of negligence, in that its employee, Mr. Allen, had the baggage car on the trestle, which negligence was and is denied, the intestate of the plaintiff was guilty of the only proximate negligence, in that, in violation of the plain rules of the company, he went out of a double track, where he was perfectly safe, at Wrightsville Station, on the mainland, on a bright morning in' August, at about 6 o’clock, when there was nothing to obscure his vision, and ran into the baggage car, which, according to defendant’s testimony, had stopped, and, before and after stopping, had been given sharp warnings to attract Hinnant’s attention, which for some unknown reason could not be done, though he was neither deaf nor blind.” In the second position taken in its brief the defendant, to sustain this contention, assigns as error the following charge given by the court below — given at the request of plaintiff (twenty-fourth assignment of error), and the refusal to give instructions prayed for by defendant, (twenty-sixth and twenty-seventh assignments of -error). The charge given at the request of plaintiff is as follows: “If the jury should find from the evidence, by its greater weight, that the train or cars upon Which the deceased was motorman was given or had the right of way over the track at the time of the collision, and that the defendant ran, or caused to be run, one of its cars out upon the track in front of the train upon which plaintiff’s intestate was motorman, and at a time when the plaintiff’s intestate’s train, upon which he was motorman, had such right of way, and that such fact was one of the contributing proximate causes of the plaintiff’s intestate’s being killed, then the jury should answer the first issue ‘Yes,’ even though they should find from the evidence that had the plaintiff’s intestate, had he kept a proper lookout and performed his duty, he could have stopped his train and prevented the collision; for if the train upon which the plaintiff’s intestate was motorman had the right of way over the track, and if the defendant company, after giving said train the right of way over the track, ran or permitted a car to be out on the track, in the way of *297 plaintiff’s intestate’s train, and kept it there until the collision occurred, resulting in the death of the plaintiff’s intestate, such would be an act of negligence on the part of the defendant, and if proximate cause of the injury, and you find so by the greater weight of the evidence, then the jury would answer the first issue ‘Yes.’ ” The instructions prayed for by defendant, and refused, are as follows: “Even though the jury should find from the evidence and the greater weight thereof — the burden of proof being upon the plaintiff to satisfy you — that the company was negligent in any respect in Allen’s baggage car being on the trestle, yet it was the motorman’s — that was Hin-nant’s — duty not to go out of the double track onto the single track, in face of the approaching baggage car, which he saw, or by using proper care, should have seen; and if you find by the evidence and its greater weight that Hinnant did see the approaching car, by the exercise of reasonable care, would have seen it in time not to go out of the double track onto the. single track on the trestle, or to stop his car after he had gone out on the single track in time to avoid the collision, you will answer the first issue ‘No.’ ” The position taken by the defendant is that the plaintiff’s intestate was guilty of negligence, which was the only and sole proximate cause of the injury, and that the jury should have answered the first issue “No.” The argument and reasoning has much to commend itself, but is not applicable in a case like the instant one. "We have a statute in this State that applies to cases qí this kind' — common carrier by railroad. A part of C. S., 3467, supra, says: “The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee,” etc. With that statute in force in this State, plaintiff’s intestate went out of the double track onto the single track on the trestle, and by keeping a proper lookout could have stopped his train and prevented the collision. This would make him guilty of contributory negligence, yet if his train had the right of way over the track, and defendant blocked it with the garbage train, and this was the proximate cause or one of the contributing proximate causes of the injury, and continuing up to the time of the collision, and the jury so find, the defendant would be guilty of negligence, and the jury should answer the issue “Yes.” The principle of Davies v. Mann, 12 M. & W., 546, and that line of cases cited by defendant’s counsel, cannot be applied to this case. The common law as to “common carriers” has been changed by statute. Our statute is similar in many respects to the Federal Employers’ Liability Act. In the argument on the passage of this act, Senator Smith, of *298 Michigan, said: “It suggests the very anomalous situation that a passenger pays bis fare, and if be contributes to bis own injury be cannot recover, while two employees paid to conduct him safely may by their negligence cause an accident and kill many persons, and yet they can recover.” 60 Cong. Record (first session), p. 4435. The present right of recovery is well stated by Thornton in his book on “The Employers’ Liability and Safety Appliance Acts,” sec. 28: “A careful reading of this section (Federal Employers’ Liability Act) will show that contributory negligence is no longer a complete defense, as it was at the common law, but is still a partial defense. As a complete defense, all the rules of the common law are erased at one sweep of the legislative pen; and, although an employee is guilty of contributory negligence, he may still recover. But those rules are still in force for the purpose of determining the quantum of damages the employee may recover; for whatever at common law was contributory negligence is still to be considered in determining the relative amount of the employee’s negligence, as compared with that of the employer.” Note 4 is as follows: “The statute ‘permits a recovery by an employee for an injury caused by the negligence of a coemployee; nor is such a recovery barred, even though the injured one contributed by his own negligence to his injury. The amount of the recovery, however, is diminished in the same degree that the negligence of the injured one contributed to the injury. It makes each party responsible for his own negligence, and requires each to bear the burden thereof.’ 60 Cong. Rec. (first session), p. 4434.” The case of Frese v. Chicago, B. & Q. R. R. Co., in U. S. Supreme Court, decided 15 October, 1923, is not applicable to the case at bar. This was a collision of a railroad train approaching a crossing with another railroad upon the same level. Frese was an engineer in charge of the engine of the defendant, Chicago, Burlington and Quincy Railroad Company. His train had a collision with the train of the Wabash Railroad Company at a grade crossing. The collision was in Illinois. The statute of Illinois requires a train approaching a crossing with another to come to a full stop 800 feet from the crossing. Frese stopped his train about 200 feet and the Wabash train about 300 feet from the crossing. The statute further provides: “The engineer or other person in charge of the engine attached to the train shall positively ascertain that the way is clear and that the train can safely resume its course before proceeding to pass the (bridge) or crossing.” Mr. Justice Holmes said: “Moreover, the statute makes it the personal duty of the engineer positively to ascertain that the train can safely resume its course. Whatever may have been the practice, he could not escape this duty, and it would be a perversion of the Employers’ Liability Act to hold that he *299 could recover for an injury primarily due to bis failure to act as required, on tbe ground tbat possibly ,tbe injury might bave been prevented if bis subordinate bad done more.” In tbe Frese case tbe deceased was killed, and tbe injury was not by a train on tbe Chicago, Burlington and Quincy Railroad Company, by whom be was employed, but be was killed by a train on tbe Wabash road. Tbe negligence of the Wabash road was not tbe negligence of a coemployee of deceased. There was no sufficient evidence of negligence shown on tbe part of tbe fireman and coemployee of Frese for tbe jury to consider. In tbe instant ease there was sufficient evidence of negligence on tbe part of defendant to be submitted to tbe jury under our statute. Tbe Illinois statute says tbe engineer “shall positively ascertain tbat the way is clear.” Tbe act of defendant in blocking its track was one of continuing negligence when-coupled with tbe continuing order from tbe company to proceed over tbe track, and when it failed to advise him, which it might bave done while at Wrightsville Station, tbat tbe track was blocked, and in not revoking tbe existing order allowing plaintiff’s intestate a superior right of way over tbe track, it was negligent. There was evidence to go to tbe jury on this phase of tbe case. It has been frequently held in this State tbat there can be more than one contributing proximate cause. “Where two efficient proximate causes contribute to an injury, if defendant’s negligent act brought about one of such causes, be is liable.” White v. Realty Co., 182 N. C., 538, and cases cited. It was in evidence — tbe weight was for tbe jury — that tbe act of defendant in blocking tbe track with another train, and in requiring its employee to operate them in violation of its own rules, and a coemployee was distracting Hinnant’s attention from, bis duties, and in failing to give adequate and efficient meeting points, and Allen’s failure to reverse bis car, were each of them acts of negligence tending to show tbe company’s liability, at least under our statutory Employers’ Liability Act. Greenlee v. R. R., 122 N. C., 977; Fleming v. R. R., 131 N. C., 476; Walker v. R. R., 135 N. C., 738; Smith v. Electric R. R., 173 N. C., 489; Hines v. Lumber Co., 174 N. C., 294. In 18 R. C. L., p. 670, it is said: “163. Disobedience of Rules of Company. In order to protect tbe life and property of tbe public, as well as for tbe protection of employees, it is highly important tbat those who engage in railroad service should observe the rules and regulations of tbe company, and tbe courts bave considered it politic to deny to an employee tbe right to recover for personal injuries to which bis disobedience of a reasonable rule or regulation of tbe company appears to bave contributed. To be binding, *300 however, rules must have been properly promulgated; and of course they must have been applicable to the facts of the particular case, and not abrogated or revolted by other inconsistent rules or orders(Italics ours.) Mason v. R. R., 111 N. C., 482; Haynes v. R. R., 143 N. C., 154; Tisdale v. Tanning Co., 185 N. C., 501; Belshe v. R. R., 186 N. C., 246. The jury found on the second issue that the plaintiff’s intestate was guilty of contributory negligence. On the issue as to the measure of damages the court below took this in consideration and in the charge to the jury on this issue followed the rule laid down in Ward v. R. R., 161 N. C., 186. The evidence for plaintiff and defendant was conflicting. The case ivas tried out, in accordance with the allegations and contentions in the statement of this case, before set out. Reciting the rules of the company, which each side relied on, and the evidence, would only make a lengthier record. We have examined the assignments of error carefully, and can find no prejudicial or reversible error. No error. Stacy, J., took no part in the consideration or decision of this case.