McGraw v. Southern Railway Co.

Clarkson, J. At the close of plaintiff’s evidence and at the close of all the evidence, the defendants in the court below made motions for judgment as in case of nonsuit. N. C. Code, 1935 (Michie), sec. 567. The court below overruled these motions, and in this we can see no error. *438 This case was here on ajopeal from judgment of nonsuit (see 206 N. 0., 873). Brogden, J., wrote a thorough opinion, setting out the facts and law. The nonsuit was overruled and also the opinion evidence which was not allowed in the court below was held to be competent. The Court said, at p. 882: “In other words, was Pendry on the rear of the train? Was there an ‘unusual, violent, and unnecessary’ jerk of the train that threw him off to his death ? These are controverted questions. However, the Court is of the opinion that there was sufficient evidence to be submitted to the jury within the contemplation of the Federal rule.” “A decision by the Supreme Court on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal.” Newbern v. Telegraph Co., 196 N. C., 14; Nobles v. Davenport, 185 N. C., 162; Power Co. v. Yount and Robinette v. Yount, 208 N. C., 182 (184). We think the evidence on the present appeal is perhaps stronger than that offered by plaintiff on the former appeal, and sufficient to have been submitted to the jury. In fact, defendants say: “While the evidence offered by the plaintiff upon the former appeal was substantially the same as the evidence offered at this trial,” etc. The plaintiff was killed on 17 April, 1932. The railroad authorities on the same day sent out a telegram to different employees: “Indications are he fell from the rear of the train or was killed by hoboes.” All the evidence shows that he was not killed by hoboes. The evidence of plaintiff indicates that he was on the caboose car, which was on the rear of the train, and plaintiff was on the rear platform of the caboose car in the line of his duty. It also indicates that he was thrown off by the carelessness and negligence of the engineer in the manner of the movement of the train, which produced a sudden, unusual, violent, and unnecessary jerk on the rear end of the train. Hamilton v. R. R., 200 N. C., 543 (558). After being thrown off he was run over and dragged some distance, and near his body was a whistle that was broken from the cab. This whistle was attached to the rear of the caboose car. It was a piece of pipe and showed a fresh break. The evidence indicates that he was holding on to the signal whistle. He had left his lantern and brake stick on the inside of the cab. The rules of the company required him to be on the rear end of the caboose car that backed out of the “Y.” The whistle from the rear end of the caboose, used as a signal in making a movement, was found near his body, broken. This was used by the employees as a handhold, and was defective. When the sudden, unusual, violent, and unnecessary jerk took place, the whistle broke and plaintiff’s intestate was thrown off the caboose car, run over and dragged. Along the track where he was dragged was found the broken whistle, his pistol, watch, etc. The evi *439 dence on the part of plaintiff was clearly sufficient to be submitted to the jury as to how this faithful employee met his death. All the evidence indicated that plaintiff’s contentions were correct, and so found by the jury. One of the main contentions of defendant was that the evidence of certain employees and agents of defendant railroad, taken before the commissioner and read to the jury, constitutes the cornerstone of the plaintiff’s case. Without it, the plaintiff cannot conceivably recover. To this line of evidence defendants excepted and assigned error. We do not think they can be sustained. N. C. Code, 1935 (Michie), sec. 899, abolishes the old equitable bill of discovery. In its place we have section 900: “A party to an action may be examined as a witness at the instance of any adverse party, and for that purpose may be compelled, in the same manner and subject to the same rules of examination as any other witness, to testify, either at the trial or conditionally or upon commission. Where a corporation is a party to the action, this examination may be made of any of its officers or agents.” Chesson v. Bank, 190 N. C., 187. The statute is remedial and should be liberally construed. Abbitt v. Gregory, 196 N. C., 9 (11). The plaintiff complied with the practice and procedure in the application for examination. Bailey v. Matthews, 156 N. C., 78 (81). Section 901 provides for examination before trial “at the option of the party claiming it.” Section 902: “The party to be examined, as provided in the preceding section, may be compelled to attend in the same manner as a witness who is to be examined conditionally; but he shall not be compelled to attend in any county other than that of his residence or where he may be served with a summons for his attendance. The examination shall be taken and filed by the judge, clerk, or commissioner, as in case of witnesses examined conditionally, and may be read by either party on the trial.” Phillips v. Land Co., 174 N. C., 542; Beck v. Wilkins-Ricks Co., 186 N. C., 210 (212). Section 904: “The examination of the party thus taken may be rebutted by adverse testimony.” If defendants desired to introduce the railroad employees and agents that plaintiff had theretofore examined before the complaint was filed, they could have done it. They were in court and defendants could have gotten their evidence. In the trial of a cause the keystone is to find the truth. Defendants had the opportunity to use these witnesses in the trial, but did not do so. We cannot see why they should now complain. The defendants contend: “In each instance the witness whose testimony had been taken before the complaint was filed and pursuant to the clerk’s order was present in court at the time his testimony was read to the jury and under subpmna for the plaintiff. In each instance the court declined to permit the defendants to cross-examine these witnesses. *440 In each instance the court ruled that the defendants would be permitted to interpose no objection to any part of the testimony of any of these witnesses, to which the defendants had not objected when the examination was had before the commissioners.” The defendants had a right, when the testimony was taken, under the statute, to object and except to incompetent evidence, and to cross-examine the witness. If this was not done, the fault lies with the defendants. The defendants say: “We think that the examination taken by the plaintiff before complaint is filed may be used by the plaintiff only as information to enable the plaintiff intelligently to frame a complaint and may not be offered by the plaintiff at the trial of the cause.” We cannot nullify the clear language of the statute, “and may be read by either party on trial.” It was in evidence that the court below admitted opinion evidence of experienced trainmen, found by the court to be experts, on the cause and effect of the stopping of a train from a given higher speed to a given lower speed, within a certain distance. This was in accordance with the former holding by Brogden, J., at p. 880, where the opinions are cited to sustain the admissibility of this kind of expert evidence. The testimony of J. O. Burford as to what another freight train did at Barber’s Junction did not show such a similarity as to make the evidence permissible under the rule, at least the exclusion was not prejudicial. The defendant Duggins contends that his liability is not controlled by the Federal Employers’ Liability Act. The plaintiff, in the complaint, par. 5, alleged: “That at the time of the plaintiff’s intestate’s injury, hereinafter referred to, the defendants were engaged in interstate commerce, and the' deceased, as an employee of the defendant Southern Railway Company, was also engaged in such commerce.” The defendant Duggins in his answer says: “Par. 5. The allegations of article five are admitted.” The issues are those usually submitted in an action under the Federal Employers’ Liability Act. There was no objection by defendant Dug-gins to these issues as to him. He asked no prayer for instruction as to him on the question now presented as to damages. If he ever had any legal rights to the contention now made, he waived them. He cannot now change the theory on which the case was tried in the court below. Ammons v. Fisher, 208 N. C., 712 (715). We think the charge as to assumption of risk correct. Taking the charge as a whole, on every aspect, and on the measure of damages we can see no prejudicial or reversible error. All the evidence indicates that plaintiff’s intestate was a faithful employee of defendant railroad for long years, and was killed in the line of his duty. *441 We have read the long record (276 pages) and able briefs of the litigants. The learned judge tried this long and complicated case with unusual care, following the prior opinion of this Court. We see on the entire record no prejudicial or reversible error. For the reasons given, in the judgment of the court below we find No error. Devin, J., took no part in the consideration or decision of this ease. Stacy, C. J., dissents.