Keith v. Norfolk Southern Railway Co.

Vaughn, J. The defendant brings forward but one exception and assignment of error. It contends that error was committed in the court’s failure to grant its motion for nonsuit. The defendant contends that the negligence of the plaintiff was the sole proximate cause of his injury and that the defendant was without negligence contributing to the injury. We disagree. The Federal Employers’ Liability Act, as set forth in U.S.C.A., Vol. 45, § 51, (hereinafter referred to as the Act) provides that every common carrier by railroad while engaged in intrastate or interstate or foreign commerce, shall be liable in damages to any employee for injuries “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, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” In determining whether or not error was committed in the denial of the defendant’s motion for nonsuit, we are not concerned with the plaintiff’s contributory negligence. Under the provisions of the Act, contributory negligence is not a bar to recovery, but, in the event of recovery, the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the plaintiff. Futrelle v. R. R., 245 N.C. 36, 94 S.E. 2d 899, reversed on other grounds, 353 U. S. 920, 1 L. Ed. 2d 718, 77 S. Ct. 682; Graham v. R. R., 240 N.C. 338, 82 S.E. 2d 346; Cobia v. R. R., 188 N.C. 487, 125 S.E. 18; Davis v. R. R., 175 N.C. 648, 96 S.E. 41. Therefore, the sole question before us is whether or not the plaintiff’s evidence was sufficient to take [201] the case to the jury on the question of actionable negligence on the part of the defendant railroad. The basis of liability ünder the Act is negligence proximately causing injury. The plaintiff must show something more than a fortuitous injury. Battley v. Railway Co., 1 N.C. App. 384, 161 S.E. 2d 750; Camp v. R. R., 232 N.C. 487, 61 S.E. 2d 358. The employer’s duty under this Act is to use reasonable care in furnishing employees with a safe place to work and safe tools and appliances. Battley v. Railway Co., supra. Railway companies are- held to a high standard of care commensurate with the attendant risks and dangers. McGraw v. R. R., 206 N.C. 873, 175 S.E. 286. The Act is to be construed liberally and evidence of liability thereunder may be either direct or circumstantial. Battley v. Railway Co., supra. Without a lengthy recital of the evidence it suffices to say that the record is replete with evidence of defendant’s negligence. The plaintiff was assigned to a new job without advice or instructions. He was told his crew would not have a work train that day. Employees of defendant were working at each end of the three-quarters of a mile section of track on which plaintiff was told to operate the truck. Defendant’s employee Hollis, who was operating a dragline at plaintiff’s loading point, saw the work train approach from the south, moved his dragline boom off the track and greeted the train crew with a wave. He was expecting plaintiff to come from the north at any moment. The evidence tends to show that he had ample opportunity to warn the train crew by handsignal and that, if he had done so, the train would have stopped. He did nothing and the collision between plaintiff’s truck and the work train occurred shortly thereafter. There was also evidence tending to show that Hollis had a duty to post warning flags but failed to do so. R. B. Sauls, section foreman for defendant,,-was operating a hy-rail truck in a northerly direction along the track in front of the work train. He came up behind plaintiff as plaintiff was preparing to dump a load of dirt. Sauls and plaintiff talked and arranged for Sauls to get around plaintiff. Sauls did not advise plaintiff that a work train was also coming north behind him. Without any warning to plaintiff, Sauls observed him start south on a collision course with the work train which he knew was coming north. [202] There was evidence of other acts and omissions by defendant from which the jury could have properly found negligence on the part of defendant proximately resulting in plaintiff’s injuries. Upon instructions not contained in the record, the jury so found. The jury also found contributory negligence on the part of plaintiff and presumably diminished his award accordingly. In this we find no error. No Error. Campbell and Parker, JJ., concur.