#### ESSIE HIGDON WARD, Administratrix of the Estate of NORVIN G. WARD, v. SOUTHERN RAILWAY COMPANY.

(Filed 23 May, 1934.)

1. Master and Servant E b — Contention that engineer could have prevented injury to brakeman after discovery of peril held not supported by evidence.

Where an engineer testifies that he could not have done anything to avoid the injury to the brakeman on his freight train after the discovery of the brakeman’s peril from trespassers on the train, and there is no evidence to the contrary, the railroad company may not be held liable for the injury on the contention that the engineer should have jolted the cars, stopped the train, or blowed the whistle upon the discovery of the trespassers.

2. Same — Held: no injury to employees could have been anticipated from employer’s alleged negligent custom and nonsuit was proper.

The evidence in this case was to the effect that plaintiff’s intestate was a brakeman on defendant’s railroad and that he was killed when struck by a xiiece of coal thrown from one of the cars by trespassers as he was inspecting the train in the line of his duty when the train was slowed down at a switch. There was evidence that thieves had habitually stolen coal from defendant’s cars in this manner for a number of years, and plaintiff contended that defendant’s negligence in permitting this larcenous custom was the proximate cause of intestate’s death. There was no evidence that any employee had theretofore been injured by coal thrown from the cars in such manner: Sold, no injury to employees could have been anticipated by defendant from such recurring acts of larceny by trespassers, and even conceding that defendant was negligent in failing to stop such custom, it cannot be held liable in damages to plaintiff, the rule of law applicable being that where unlawful acts of third persons intervene between defendant’s negligence and the injury which was not intended by defendant and could not have been foreseen by it, the causal relation is broken and defendant is not liable.

Civil ACTION, before McElroy, J., at October Term, 1933, of BuNCOMBE.

Tlie evidence tended to show that Norvin Gf. Ward, plaintiff’s intestate, was fatally injured about twelve o’clock noon, at Hendersonville, on or about 9 February, 1933. Ward was head brakeman on a freight train of defendant, and it was admitted that he was killed while engaged in interstate commerce. The story of his death, as told by the engineer, is substantially as follows: “Approaching Hendersonville, about one-half mile from the station, we left the main line and headed into the passing track. Mr. Ward threw the switch. He was riding on the engine all the way from Asheville. I moved along so he could get off and throw the switch without stopping. . . . He got off on the right-hand side, the side occupied by me as engineer. He then walked back just a little *531way, stopped and was looking under tbe cars as I pulled by inspecting tbe train. ... It was tbe duty of tbe brakeman to inspect tbe train at all times. . . . He was about four cars back from tbe engine and there was a big coal car loaded witb large lumps of coal, loaded up bigb, and just about tbe time tbe coal car came up where Mr. Ward was there were three colored men came up from tbe opposite side and went to throwing coal off and about tbe third piece they threw off bit Mr. Ward. I didn’t see tbe colored men climb up or until they came up on tbe top of tbe car. I first saw them on tbe car. They got up on tbe opposite side of tbe car from where Ward was standing. . . . When tbe coal bit Mr. Ward be fell just as quick as that coal bit him, right on tbe ground. I turned tbe engine oyer to tbe fireman, told him to pull in tbe clear, that a colored man bad killed tbe brakeman. All three of tbe men on tbe car were throwing off coal, on tbe same side. ... It looked like bis skull was crushed.” In response to question as to bow long trespassers bad been throwing coal off tbe train, tbe witness said: “They have been doing it ever since I have been on tbe railroad, that is about thirty-two years. . . . Throwing it off every time it would go slow enough for them to get upon it.” In response to tbe question to tbe engineer as to whether be could have stopped tbe train or “jostled tbe cars” so as to prevent colored men from throwing coal from tbe train, be said:] “It could not have been done. ... I could not have helped it — had very little time. I didn’t have time. Tbe darkies bad been stealing coal here. I bad known it for thirty-two years. I never knew of anybody being hurt before that. Mr. Ward bad been running on this line part of tbe time and be bad been witb tbe railroad a great while. lie bad been over on this line a good deal. I have bad him as conductor over here. . . . Everybody knew that tbe darkies were stealing coal from tbe train.” There was further evidence that tbe conductor was in tbe caboose at tbe time on tbe rear of tbe train, where bis duty required him to be.

There was further evidence that tbe defendant company bad done nothing to prevent thieves from boarding freight trains, when they were running slowly or standing still, and stealing coal therefrom during tbe last three or four years. There was also evidence that coal was frequently stolen over tbe entire system, and that at other points on tbe system special agents bad been employed by tbe defendant in an attempt to apprehend tbe thieves.

At tbe conclusion of tbe evidence tbe trial judge sustained a motion of nonsuit and tbe plaintiff appealed.

Thomas L. Johnson, J. Bat Smothers and T. A. TJzzell, Jr., for plaintiff.

B. G. Kelly and Jones & Ward for defendant.

*532BbogdeN, J".

Is a railroad company liable in damages for tbe killing of an employee by trespassers and thieves who come upon a freight train to steal coal therefrom ?

The plaintiff plants the right of recovery upon two grounds: First, that the engineer of the train did not blow the whistle, stop the train or jostle the cars and thus prevent the thieves from climbing upon the train; second, that thieves had been stealing coal from the defendant and climbing upon its freight trains for such purposes for thirty years, and that the defendant had failed and neglected to take proper precaution to prevent the stealing of coal. The engineer testified that he did not have time to do anything to save plaintiff’s intestate after the Negroes crawled upon the train and began to throw coal therefrom. There was no evidence to the contrary, and consequently this ground of liability disappears.

The basis for the second contention is that the defendant had negligently permitted and allowed thieves to steal its property, and that such negligent custom was the proximate cause of the death of plaintiff’s intestate.

It is a familiar principle of law that if an employer permits a dangerous custom to exist in the operation of his business and acquiesces therein that he must answer in damages for all foreseeable consequences resulting therefrom. However, it would not ordinarily be supposed that a carrier would approve or acquiesce in the larceny of its property by thieves, and there is no evidence that the defendant invited or approved the various thefts. Moreover, there was no' evidence that any other employee of the. defendant had ever been injured by the acts of coal thieves, and consequently if such acts were dangerous, there was no notice of the previous hazard of personal injury to trainmen.

In the final analysis, the ease presents an injury inflicted by the criminal act of a third person, and one in nowise connected with the operation of the train or the ordinary prosecution of the defendant’s business.

Assuming, but not deciding, that the defendant was negligent in not taking proper precaution against the coal thieves, nevertheless the general rule of law is that if between the negligence and the injury there is the intervening crime or wilful and malicious act of a third person producing the injury but that such was not intended by the defendant, and could not have been reasonably foreseen by it, “the causal chain between the original negligence and accident is broken.” Burt v. Advertising Co., 28 N. E., 1; Chancey v. R. R., 174 N. C., 351; Green v. Atlanta & C. A. L. Ry. Co., 148 S. E., 633; Green v. R. R., 279 U. S., 821, 73 L. Ed., 976; Davis v. Green, 260 U. S., 349; St. Louis R. R. Co. v. Mills, 271 U. S., 343, 70 L. Ed., 979; Strong v. Granite Furniture Co., 294 Pac., 303, 78 A. L. R., 465, and annotation.

*533Tbe plaintiff relies upon Fletcher v. R. R., 168 U. S., 134, 42 L. Ed., 411. It is to be observed, however, that the Fletcher case involved injury inflicted by the railroad company by reason of negligent operation of a train which was entirely under its control. Consequently this case is not determinative.

Affirmed.