{ "id": 11271840, "name": "J. T. BORDEAUX, Administrator, v. ATLANTIC COAST LINE RAILROAD COMPANY", "name_abbreviation": "Bordeaux v. Atlantic Coast Line Railroad", "decision_date": "1909-04-28", "docket_number": "", "first_page": "528", "last_page": "533", "citations": [ { "type": "official", "cite": "150 N.C. 528" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "170 N. Y., 459", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2303623 ], "opinion_index": 0, "case_paths": [ "/ny/170/0459-01" ] }, { "cite": "151 N. Y., 579", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 29711 ], "opinion_index": 0, "case_paths": [ "/ny/151/0579-01" ] }, { "cite": "141 N. C., 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11252126 ], "opinion_index": 0, "case_paths": [ "/nc/141/0084-01" ] }, { "cite": "145 N. C., 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11252756 ], "opinion_index": 0, "case_paths": [ "/nc/145/0214-01" ] }, { "cite": "142 N. C., 336", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "142 N. C., 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651843 ], "opinion_index": 0, "case_paths": [ "/nc/142/0198-01" ] }, { "cite": "174 N. Y., 1", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2310505 ], "opinion_index": 0, "case_paths": [ "/ny/174/0001-01" ] }, { "cite": "50 Fed., 722", "category": "reporters:federal", "reporter": "F.", "opinion_index": 0 }, { "cite": "143 N. C., 165", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "139 N. C., 538", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "129 N. C., 263", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 550, "char_count": 10751, "ocr_confidence": 0.459, "pagerank": { "raw": 1.5787617961954702e-07, "percentile": 0.6800018070551603 }, "sha256": "50fbea1abe82f1546135fd07b1c3283b6cc8ed59be31f0b508a311e4d19dda5c", "simhash": "1:5930efb26e3883ed", "word_count": 1885 }, "last_updated": "2023-07-14T18:55:20.077008+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "J. T. BORDEAUX, Administrator, v. ATLANTIC COAST LINE RAILROAD COMPANY." ], "opinions": [ { "text": "Brown, J.\nTbe evidence discloses a state of facts which, with the exception hereinafter noted, is practically uncontested.\nPlaintiff\u2019s intestate was a car repairer, employed in defendant\u2019s switching and repair yards at South Rocky Mount, whose duty it was to repair cars standing on the numerous tracks therein. For the protection of its workmen the defendant had long since adopted and published .rules which required those employed in repairing cars on tracks in the yards to place a blue flag on the car, so as to give notice to the switch enginemen not to move, such cars or run other cars in on them, so as to endanger the workmen employed in repairing them.\nOn 13 March, 1907, the intestate, with Denby and Wilkens, fellow-workmen, went out to repair a tank car on track'No. 1, carrying with them a blue flag furnished by the defendant. There was much shifting going on at the time on the yard tracks. Instead of putting out the flag, the repairers discussed the matter and decided that this was a short job and to put Denby out to watch, who failed to keep proper lookout. While Bordeaux, the plaintiff\u2019s intestate, was under the car repairing it, the engineer of a switch engine \u201ckicked\u201d or \u201cpitched\u201d a box car loaded with lumber onto track No. 1, which struck another car and forced that against the tank car, running it over intestate and killing him.\n1. It is contended by defendant that his Honor erred in denying the motion to nonsuit. We are precluded from considering this exception, because, while made at the close of plaintiff\u2019s evidence, it was waived by not renewing it at the end of all the evidence. Revisal, sec. 539; Parklier v. Railroad, 129 N. C., 263.\n2. It is contended tha\u2019t there is no evidence of negligence. This contention would be well founded but for the fact that there is evidence in the record sufficient to go'to the jury that the rule promulgated by defendant for \u2019the protection of those engaged in working around and under cars in its yards h\u00e1d been allowed by the superintendent and foreman of defendant to relapse into \u201cinnocuous desuetude,\u201d especially as to \u201cshort jobs.\u201d We admit that the rulings of the court in regard to \u201ckicking\u201d cars, or making .flying switches at public or much frequented crossings, do not apply to the constant changing or switching of cars that is inevitable in the extensive repair and switch yards of a large railway system. But while such methods may be necessary, it is equally necessary that the company should not only establish proper rules for the protection of employees on the yards, but also should enforce them.\nA rule to protect employees should be so framed as to guard them to a reasonable extent against the consequences, not only of the carelessness of coemployees, but of their own carelessness also. It is well known that men are prone to run risks in order to save time and trouble, especially where the risks last but a moment, and the precaution necessary to guard against it requires a considerable period of time.\nA rule which has been habitually violated, with the knowledge or acquiescence of the master, actual or implied, is almost universally regarded as waived or abrogated. Wright v. Railroad, 5 R. R. Rep., 483; Biles v. Railroad, 139 N. C., 538; Haynes v. Railroad, 143 N. C., 165; Railroad v. Meckles, 50 Fed., 722; Devoe v. Railroad, 174 N. Y., 1.\nThere is evidence pro and con upon the question of the waiver of the rule, which was submitted to the jury by the learned judge in a well-considered, clear and correct charge as to the law bearing thereon.\nIt is doubtless true, as contended, that defendant\u2019s superintendents and foremen in charge of the yards cannot tell whether a job will be a long or a short one. Therefore it follows that the only safe course to pursue is to enforce obedience to the rule in respect to all jobs done on the yards, whether long or short, by\u201d discharging those who fail to observe it.\nIt appears in evidence that, notwithstanding the printed and bulletined rule, it was a custom of long standing in these yards, and well known, that if the workmen found the job a short one, that could be done in from two to five minutes, they would not put up flags, and if it was a longer job they would put them up. Mozingo, the engineer who caused the catastrophe by \u201ckicking\u201d in the loaded box car, knew of the custom, for he states in his testimony: \u201cI could see car repairers at work, and I knew the customary way of repairing the cars for a month previous to the death of the plaintiff\u2019s intestate.. For short jobs in repairing cars the repairers didn\u2019t put up any flags. It was the custom not to put them up. It would seem that they took the chances on short jobs. The flags were the only guides I had. If no flag up, I would run the cars right in; wouldn\u2019t know\u00bb whether long or short jobs, and so had to rely on flags!\u201d\nThere is further evidence that the speed limit fixed by rule for the yards is six miles per hour, and that the box car was \u2022pitched onto track No. 1 at a much faster rate of sjieed, so that it rolled uncontrolled over a hundred- yards and crashed into the intervening car with such force that it was thrown violently against the tank car which the intesthte was repairing.\nWith the rule in abeyance, and the custom of the workmen well known to the engineer, to \u201ckick\u201d the car in on track No. 1 under such conditions and at such speed, is undoubtedly culpable negligence. Hudson v. Railroad, 142 N. C., 198; Wilson v. Railroad, 142 N. C., 336; Allen v. Railroad, 145 N. C., 214; Ray v. Railroad, 141 N. C., 84; Doing v. Railroad, 151 N. Y., 579; Dowd v. Railroad, 170 N. Y., 459; Railroad v. Lowe, 1 R. R. Rep., 363.\n3. It is contended that the uncontradicted evidence shows that the plaintiff\u2019s intestate was guilty of contributory negligence, and that his Honor erred in refusing so to charge. Upon this issue he charged the jury: \u201cEven though you should find that the rule requiring the 'putting out of the blue flags when the employees were engaged in such work as the plaintiff\u2019s intestate was engaged in when he was injured was habitually violated, yet if the work in which the plaintiff\u2019s intestate was engaged at the time of the injury was of so dangerous a character that an ordinarily prudent man would not have undertaken to have done the work without putting out hlue flags, then in such case the plaintiff could not recover, and you should find the second issue \u2018Yes.\u2019 \u201d\nIt ajjpears in evidence that, upon examination, the repairers all agreed that the job would be a very short one \u2014 from half minute to two minutes \u2014 and that they discussed the matter and decided not to put out the flag, but to have one of their number keep a lookout.\nOf course, if there was no evidence of a waiver or abrogation of the rale, such clear disobedience of it would effectually bar a recovery; but if the rule is taken to be in abeyance, then it practically did not exist, and the question must be determined accordingly. With the rale out of the way, we are not prepared to bold as matter of law, in any view of tbe evidence, that the intestate was guilty of such contributory negligence as will prevent a recovery.\n\"Whether under such circumstances a man of ordinary prudence, having to go under the car for such a short space of time, would have reasonably .trusted to the vigilance of his companion, instead of the more certain and reliable signal flag, is a question properly and fairly submitted to the jury.\nWe have examined all the exceptions in the record, and find\nNo Error.", "type": "majority", "author": "Brown, J." } ], "attorneys": [ "W. C. Munroe and George E. Mood for plaintiff.", "Aycock & Daniels and R. W. Winston for defendant." ], "corrections": "", "head_matter": "J. T. BORDEAUX, Administrator, v. ATLANTIC COAST LINE RAILROAD COMPANY.\n(Filed 28 April, 1909.)\n1. Evidence \u2014 Nonsuit\u2014Waiver.\nA motion as of nonsuit upon the evidence, made at the close of plaintiff\u2019s evidence and not renewed at the close of all the evidence, Is waived and will not be considered on appeal.\n2. Master and Servant \u2014 Railroads\u2014Yards\u2014Employees\u2014Negligence \u2014 Rules of Employer \u2014 Enforcement.\nThe failure to enforce a reasonable rule made for the protection of employees of a railroad company engaged in repairing cars upon an extensive repair and switching yard is evidence of a waiver or abrogation of the rule.\n3. .Master and Servant \u2014 Railroads\u2014Rules of Employer \u2014 Habitual Violation \u2014 Knowledge\u2014Waiver.\nA printed and bulletined rule made for the safety of employees engaged in repairing cars on an extensive repairing and switching yard of a railroad company, requiring that flags of warning should be placed in a certain manner at such times, wilj not relieve the company of liability for its negligence, when the employees fail to observe the rule while engaged in \u201cshort jobs,\u201d when it was actually or constructively known to the company that the rule was habitually and continually disregarded in such instances to such an extent as to-amount to an abrogation.\n4. Master and Servant \u2014 Railroads \u2014 \u201cKicking\u201d Cars \u2014 Railroad Yards \u2014 Rules of Safety \u2014 Enforcement\u2014Employer.\nWhil.e the rules of- liability of railroads in regard to \u201ckicking\u201d cars or making \u201cflying switches\u201d at a public crossing do not apply to the constant changing or switching of cars on extensive repairing and switching yards, it is still the duty of the company to establish and enforce proper rules for the protection of the employees in such yards from injuries otherwise likely to occur to them when engaged in repairing cars therein.\n5. Master and Servant \u2014 -Railroads\u2014Rules of Employer \u2014 Waiver\u2014 Contributory -Negligence \u2014 Evidence\u2014Questions for Jury.\nWhen there is evidence of a waiver by a railroad company of its rule that employees at work on cars on its extensive repairing and switching yard must put out blue flags as warnings, and that plaintiff and two other employees agreed that the -job would be a short one \u2014 from a half minute to two minutes \u2014 discussed the matter and decided not to put out the flags, but have one of their number keep a lookout, and while thus engaged the plaintiff\u2019s intestate was killed by a shifting engine \u201ckicking,\u201d at fast speed, cars onto the one where he was working, the question of contributory negligence is one for the jury.\nACTION to recover damages for the alleged negligent, killing of L. W. Bordeaux, tried before Biggs, J., and a jury,- at October Term, 1908, of Wayne.\nThese issues were submitted to the jury:\n1. \u201cWas the plaintiff\u2019s intestate killed by the negligence of the defendant company?\u201d Answer: \u201cYes.\u201d\n2. \u201cDid the plaintiff\u2019s intestate, by his own negligence, contribute to his death ?\u201d Answer: \u201cNo.\u201d\n3. \u201cWhat damages, if any, is plaintiff entitled to recover?\u201d Answer: \u201cSix thousand dollars.\u201d\nDefendant appealed.\nThe facts are stated in the opinion of the Court.\nW. C. Munroe and George E. Mood for plaintiff.\nAycock & Daniels and R. W. Winston for defendant." }, "file_name": "0528-01", "first_page_order": 572, "last_page_order": 577 }