{ "id": 8606514, "name": "GEORGE L. WIMBERLEY, Jr., Admr., v. ATLANTIC COAST LINE RAILROAD COMPANY", "name_abbreviation": "Wimberley v. Atlantic Coast Line Railroad", "decision_date": "1925-11-12", "docket_number": "", "first_page": "444", "last_page": "448", "citations": [ { "type": "official", "cite": "190 N.C. 444" } ], "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": "258 U. S., 92", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1479325 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/258/0092-01" ] }, { "cite": "183 N. C., 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656712 ], "opinion_index": 0, "case_paths": [ "/nc/183/0444-01" ] }, { "cite": "188 N. C., 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654255 ], "opinion_index": 0, "case_paths": [ "/nc/188/0487-01" ] }, { "cite": "128 N. C., 252", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659623 ], "opinion_index": 0, "case_paths": [ "/nc/128/0252-01" ] }, { "cite": "167 N. C., 4", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271010 ], "opinion_index": 0, "case_paths": [ "/nc/167/0004-01" ] }, { "cite": "167 N. C., 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273219 ], "opinion_index": 0, "case_paths": [ "/nc/167/0510-01" ] }, { "cite": "200 U. S., 480", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8295085 ], "opinion_index": 0, "case_paths": [ "/us/200/0480-01" ] }, { "cite": "228 U. S., 233", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3667724 ], "opinion_index": 0, "case_paths": [ "/us/228/0233-01" ] }, { "cite": "247 U. S., 367", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1484677 ], "opinion_index": 0, "case_paths": [ "/us/247/0367-01" ] }, { "cite": "175 N. C., 472", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660280 ], "opinion_index": 0, "case_paths": [ "/nc/175/0472-01" ] }, { "cite": "183 N. C., 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655758 ], "opinion_index": 0, "case_paths": [ "/nc/183/0181-01" ] }, { "cite": "239 U. S., 556", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3933227 ], "opinion_index": 0, "case_paths": [ "/us/239/0556-01" ] } ], "analysis": { "cardinality": 673, "char_count": 12716, "ocr_confidence": 0.474, "pagerank": { "raw": 1.579646799335025e-07, "percentile": 0.6801751762361435 }, "sha256": "b49d6b24e16160a90cd9ac0d7f5e9fe9cd0554f40b44ed839181910a7547eff8", "simhash": "1:b4b2a4d4d8b955ba", "word_count": 2200 }, "last_updated": "2023-07-14T22:38:29.672014+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GEORGE L. WIMBERLEY, Jr., Admr., v. ATLANTIC COAST LINE RAILROAD COMPANY." ], "opinions": [ { "text": "Stacy, C. J.\nIt is alleged in the complaint and admitted by the answer that the defendant is a common carrier by railroad, engaged in interstate commerce, and that plaintiff\u2019s intestate was employed by the defendant in such commerce at the time of his injury and death. The case, therefore, is one arising under the Federal Employers\u2019 Liability Act, and it has properly been tried under that act. Shanks v. Del. R. Co., 239 U. S., 556; Capps v. R. R., 183 N. C., 181. The deceased employee left a widow and one small son him surviving, and his administrator, or personal representative, is prosecuting this suit on behalf of these persons, who fall in the first class of beneficiaries under the statute. Horton v. R. R., 175 N. C., 472; Dooley v. R. R., 163 N. C., p. 463.\nThe defendant\u2019s chief assignment of error, or the one most strongly urged on the argument and in its brief, is the exception addressed to the refusal of tbe court to grant its motion for judgment as of nonsuit, made as permitted by C. S., 567, at tbe close of plaintiff\u2019s evidence. There was no evidence offered by tbe defendant. With reference to tbe rule of procedure applicable, authorized by statute in this jurisdiction, it is uniformly held that on a motion for involuntary nonsuit, considered with us as equivalent to a demurrer to tbe evidence, tbe facts making for tbe plaintiff\u2019s claim and which tend to support bis cause of action, must be taken as true and construed in tbe light most favorable to him. Nash v. Royster, 189 N. C., p. 410; Lamb v. R. R., 179 N. C., p. 623.\nViewing tbe evidence under this rule and in its most favorable light for tbe plaintiff, we find tbe following facts sufficiently established, or as reasonable inferences to be deduced from tbe testimony of tbe witnesses :\n1. Plaintiff\u2019s intestate, R. C. Murray, was killed about 4:00 a. m., 21 January, 1921, while in tbe discharge of bis duties as brakeman on tbe defendant\u2019s northbound freight train, No. 212, composed of a Pacific-type engine, No. 1558, tender and 75 cars, as it approached Rennert\u2019s Siding, approximately 20 miles south of Fayetteville, N. C., on an interstate run from Florence, S. C., to points as far north as Rocky Mount,'N. C.\n2. Tbe freight train in question was running on a \u201ctime order,\u201d ahead of No. 86, one of tbe defendant\u2019s fast passenger trains, and tbe engineer of tbe freight train,. with only \u201crunning time and clearance time\u201d and probably a few minutes to spare, was preparing to take tbe spur track at Rennert\u2019s Siding, so that No. 86 might pass at this point.\n3. It was tbe duty of plaintiff\u2019s intestate to throw tbe switch in order that tbe freight train might clear tbe track for tbe oncoming passenger train.\n4. Plaintiff\u2019s intestate was riding on tbe engine with tbe engineer; he knew of tbe order to clear tbe main line for No. 86, and tbe time within which tbe rules of tbe company required this to be done; be said to tbe engineer as they came within a mile and a half or more of Ren-nert\u2019s Siding, \u201cWhen we get there I will go out and set tbe switch so you will not have to stop,\u201d to which tbe engineer replied, \u201cWell, I will appreciate it.\u201d This was equivalent to an order from tbe engineer to throw tbe switch.\n5. Plaintiff\u2019s intestate left tbe cab of tbe engine, from tbe fireman\u2019s side, walked along tbe narrow foot board about 14 inches wide, leading from tbe cab to tbo pilot of tbe engine and which is provided for going along that way and is protected by a small band rail, but be fell and was killed by tbe train before it reached tbe switch.\n6. At tbe time plaintiff\u2019s intestate left tbe cab to go out over tbe engine and across tbe pilot, tbe train was running at a rate of 15 or 18 miles an bour and was about a quarter of a mile from Rennert\u2019s Siding. He expected to jump from tbe pilot to tbe ground, run ahead of tbe moving train and qpen tbe switch so that it could take tbe siding without coming to a full stop. This was tbe customary method of throwing switches for these trains, and tbe officials of tbe company knew of its practice, but tbe evidence is conflicting as to whether such practice was in violation of tbe rules of tbe company.\n7. There was evidence from which tbe jury could infer that after plaintiff\u2019s intestate left tbe cab of tbe engine, tbe speed of tbe train was reduced from 18 miles per bour to 5 miles per bour within a comparatively short distance; and from this circumstance plaintiff contended that bis intestate fell from tbe engine by reason of a sudden jerk or jolt, though there was direct evidence in denial of any unusual jar of tbe train.\n8. It was further in evidence that tbe pilot of tbe engine was in a damp, frosty condition and tbe night dark and pretty cold.\nUpon these tbe facts chiefly pertinent and bearing directly on tbe question of tbe defendant\u2019s liability, we think tbe trial court correctly submitted tbe case to tbe jury, and that tbe motion for judgment as of nonsuit was properly overruled. There is ample evidence to warrant tbe jury in finding, as it did, that plaintiff\u2019s intestate was negligently permitted and directed to leave tbe train under conditions that were not safe, and that be was negligently precipitated from tbe engine, which resulted in bis death. New Orleans, etc., R. R. v. Harris, Admr., 247 U. S., 367; Sweeney v. Erving, 228 U. S., 233; Looney v. R. R., 200 U. S., 480; Ridge v. R. R., 167 N. C., 510.\nSpeaking to a similar question in Fitzgerald v. R. R., 141 N. C., p. 534, Holce, J., said: \u201cIt is very generally held that direct evidence of negligence is not required, but tbe same may be inferred from facts and attendant circumstances, and it is well established that if tbe facts proved establish tbe more reasonable probability that tbe defendant has been guilty of actionable negligence, tbe case cannot be withdrawn from tbe jury, though tbe possibility of accident may arise on tbe evidence,\u201d citing authorities for tbe position.\nTbe defendant may have elicited on cross-examination,' evidence somewhat contradictory to that above detailed, but this only affected tbe credibility of tbe witnesses and did' not destroy their testimony. Christman v. Hilliard, 167 N. C., 4.\nAnimadverting on a similar situation in Shell v. Roseman, 155 N. C., p. 94, Allen, J., said: \u201c\u00a5e are not inadvertent to tbe fact that tbe plaintiff made a statement on cross-examination as to a material matter, apparently in conflict with, bis evidence wben examined in chief, but this affected bis credibility only, and did not justify withdrawing bis evidence from the jury. Ward v. Mfg. Co., 128 N. C., 252.\u201d\nAgain it is the accepted position with respect to cases arising under the Federal Employers\u2019 Liability Act that the doctrine of assumption of risk has no application wben the negligence of a fellow-servant or co-employee, which the injured party could not have foreseen or expected, is the sole, direct and immediate cause of the injury. Seaboard R. R. Co. v. Horton, 233, U. S., 492, Cobia v. R. R., 188 N. C., 487; Bass v. R. R., 183 N. C., 444.\nIn Reed v. Director General of Railroads, 258 U. S., 92, 66 L. Ed., 480, a caboose of an interstate train was being moved in front of a locomotive through the railroad yards at South Bethlehem, Pa., and over tracks equipped with derailing devices; the engineer could not see these devices when operating the engine from his cab, and, for this reason, Leo C. Reed, a member of the train crew, was directed to and did locate himself on the front of the caboose, with the duty to signal the engineer in time for him to stop, if it should be discovered that one of the derailing devices was set against further passage. One was so set, but, either through the negligence of Reed himself, or of the engineer in failing to notice or heed his signaling, the locomotive did not stop with safety, the caboose was derailed, and Reed was crushed to death between it and cars \u2022 on an adjoining track. Accepting the view that the engineer\u2019s negligence was the proximate cause of the fatal injury, the Supreme Court of Pennsylvania held the decedent had assumed the risk of such negligence and the master was not liable. This was reversed on certiorari by the Supreme Court of the United States, and in delivering .'the opinion of the Court, Mr. Justice McBeynolds, said:\n\u201cIn actions under the Federal act, the doctrine of assumption of risk certainly has no application when the negligence of a fellow-servant, which the injured party could not have foreseen or expected, is the sole, direct, and immediate cause of the injury. To hold otherwise would conflict with the declaration of Congress that every common carrier by railroad, while engaged in interstate commerce, shall be liable to the personal representative of any employee killed while employed therein, when death results from the negligence of any of the officers, agents, or employees of such carriers.\u201d\nThe remaining exceptions are without substantial merit; they have all been covered by former adjudications. Ve have examined the authorities cited in the defendant\u2019s carefully prepared brief, but find that they are easily distinguishable from the case at bar by reason of the peculiar facts here presented. Viewing the record in its entirety, we think the verdict and judgment should be upheld.\nNo error.", "type": "majority", "author": "Stacy, C. J." } ], "attorneys": [ "J os. B. Ramsey and J ohn Kerr, Jr., for plaintiff.", "Thos. W. Davis, V. K. Phelps and Spruill & Spruill for defendant." ], "corrections": "", "head_matter": "GEORGE L. WIMBERLEY, Jr., Admr., v. ATLANTIC COAST LINE RAILROAD COMPANY.\n(Filed 12 November, 1925.)\n1. Employer and Employee \u2014 Master and Servant \u2014 Commerce\u2014Railroads \u2014 Federal Statutes.\nIn an action to recover damages for the alleged negligent killing of plaintiff\u2019s intestate, where it is admitted by the pleadings that the defendant was a common carrier by railroad, and engaged in'interstate commerce at the time of the killing, and the intestate was employed by the defendant in such commerce, the defendant\u2019s liability is determinable under the Federal Statute.\n2. Evidence \u2014 Nonsuit.\nUpon defendant\u2019s motion as of nonsuit, the evidence is to be considered in the light most favorable to the plaintiff.\n3. Employer and Employee \u2014 Master and Servant \u2014 Negligence\u2014Commerce \u2014 Federal Employers\u2019 Liability Act \u2014 Evidence\u2014Nonsuit.\nWhere there is evidence that the plaintiff\u2019s intestate was employed, as a part of his duty to a railroad company, to throw the switches to pass the trains from the main line to a siding for the passage of another train, under the custom of slowing down the train before reaching the switch, the passing of the switchman along the side of the locomotive, jumping from the pilot of the engine to the ground, running ahead and opening the switch to allow the passing of the train without stopping; that at the time in question the pilot was covered with frost and particularly dangerous for this purpose, and that the plaintiff\u2019s intestate fell to his death under the implied order of the engineer, the defendant\u2019s vice-principal, at a time when the engine made a sudden jerk or movement: Held, upon a motion by defendant as of nonsuit, the evidence was sufficient to warrant the jury in finding that the plaintiff\u2019s intestate was negligently permitted or directed to act as he did, and to deny said motion, and permit the inference of defendant\u2019s actionable negligence.\n4. Same \u2014 Assumption of Risks.\nThe doctrine of assumption of risks has no application to cases arising when the negligence of a fellow-servant or coemployee, which the injured party could not have foreseen or expected, is the sole, direct and immediate cause of the injury.\n5. Evidence \u2014 Conflicting Evidence of Plaintiff \u2014 Nonsuit.\nThe defendant\u2019s motion as of nonsuit will be denied, though from a part of the plaintiff\u2019s evidence no cause of action has been shown, if other of his evidence is sufficient to sustain his cause.\nAppeal by defendant from Sinclair, J., at April Term, 1925, of Nash.\nCivil action arising under the Federal Employers\u2019 Liability Act, and tried upon the following issues:\n\u201c1. Was the plaintiff\u2019s intestate killed by the negligence of the defendant as alleged in the complaint? Answer: Yes.\n\u201c2. Did the plaintiff\u2019s intestate, by his own negligence, contribute to his injury? Answer: No.\n\u201c3; Did the plaintiff\u2019s intestate voluntarily assume the risk incident to performing the work in the manner in which he undertook to do it? Answer: No.\n\u201c4. What damages, if any, is plaintiff entitled to recover ? Answer: $15,000.00.\n\u201c5. What part of the recovery, if any, is the widow entitled to? Answer: $5,000.00.\n\u201c6. What part, if any, is the son entitled to ? Answer: $10,000.00.\u201d\nFrom a judgment on the verdict in favor of plaintiff, the defendant appeals, assigning errors.\nJ os. B. Ramsey and J ohn Kerr, Jr., for plaintiff.\nThos. W. Davis, V. K. Phelps and Spruill & Spruill for defendant." }, "file_name": "0444-01", "first_page_order": 548, "last_page_order": 552 }