Plaintiff alleged and claimed that on 28 July, 1918, her intestate, an employee of the railroad company, under charge and control of defendant, was negligently run over and killed by the kicking or shunting of cars on to the track on or near which the intestate was standing at the time.
There was denial of liability by defendant, plea of contributory negligence and assumption of risk, etc. The proof showed that the intestate left him, surviving, his widow, the present plaintiff, and two infant children, a girl, Vernell Moore, three to four years of age, and a boy, Maurice or Morris Moore, aged one month or over, dependent on intestate within the meaning of the statute, and on this and further evidence offered, the jury rendered the following verdict:
"1. Was the plaintiff's intestate killed by the negligence of the defendant, as alleged in the complaint? Answer: `Yes.'
"2. Did the plaintiff's intestate, by his own negligence, contribute to his death, as alleged in the answer? Answer: `Yes.'
"3. Did the plaintiff's intestate assume the risk of being killed in the way and manner he was killed? Answer: `No.'
"4. What damage, if any, is plaintiff entitled to recover for herself, as the widow of her intestate? Answer: `$1,000.'
"5. What damage, if any, is plaintiff entitled to recover for the infant, Vernell Moore? Answer: `$2,000.'
"6. What damage, if any, is plaintiff entitled to recover for the infant, Morris Moore? Answer: `$2,000.'
Judgment for the aggregate amount on this verdict for plaintiff, and defendant excepted and appealed, assigning errors.
On the argument before us, defendant's counsel rested their right to a new trial upon the two objections, first that the question of damages was submitted on separate issues as to each of the dependents, second that on the entire testimony defendant's motion for nonsuit should have been allowed.
In reference to the first position, it has been recently held with us in two or more cases where the question was directly considered that under the Employer's Liability Act and the authoritative Federal decisions construing the same, the award of damages might be properly assessed upon separate issues. Hudson v. R. R., 176 N.C. 488; Horton v. R. R., 175 N.C. 472-477.
In Horton v. R. R., the Court, in approving a verdict similar in form to that rendered in the instant case, said: "Under the State statute the jury assesses the value of the life of the defendant in solido, which is disbursed under the statute of distributions. Under the United States statute, the jury must find as to each plaintiff what pecuniary benefit each plaintiff had reason to expect from the continued life of the deceased, and the recovery must be limited to compensation of those relatives in the proper class who are shown to have sustained some pecuniary loss. R. R. v. Vreeland, 227 U.S. 173; R. R. v. Zachary,232 U.S. 248. In the latter case the Court said: `The statutory action of an administrator is not for the equal benefit of each of the surviving relatives for whose benefit the suit is brought. Though the judgment may be for a gross amount, the interest of each beneficiary must be measured by his or her individual pecuniary loss. That apportionment is for the jury to return. This of course excludes any recovery in behalf of such as show no pecuniary loss.'
"This was not overruled in R. R. v. White, 238 U.S. 207. In the latter case the defendant did not ask to have the damages apportioned by the jury, but moved for arrest of judgment after the verdict was rendered because the verdict was a general one. The Court merely held that the verdict was not void because not apportioned and that the apportionment was no concern to the defendant, who can not be heard if it did not except on the trial. None the less the plaintiff has a right, as in this case, to have the jury apportion the recoveries."
Under the Federal decisions referred to in this excerpt, even if the question of damages had been submitted on a single issue as defendant desired, the estimate of the amount would have been determined according to the rule or principle expressed in these separate issues, and to our minds the exception presents no substantial objection to the validity of the trial.
As to the second objection, it is the rule prevailing in both State and Federal procedure that on a motion for involuntary nonsuit, equivalent with us to a demurrer to the evidence the facts presented which make in favor of plaintiff's claim, must be accepted as true and interpreted in the light most favorable to him. Lamb v. R. R., at the present term, p. 619, citing, among other authorities, Aman v. Lumber Co., 160 N.C. 369; Biles v. R.R., 143 N.C. 78; Chinoweth v. Haskell, 3 Peters, 92; Pawling v. U.S., 4 Cranch, 219.
Considering the record in view of this principle, there were facts in evidence on the part of plaintiff tending to show that intestate at the time of his death was the member of a switching crew engaged at the time in shifting cars on the railroad yards at Canton, N.C. under the control and direction of the yardmaster, Jesse Harrison. That at this
station there was the main railroad track running east and west and just south of this and parallel was a siding known as the house track for the use and occupation of cars hauling general freight.
North of the main track were a number of sidings, principally for cars hauling freight, etc., for the Champion Fibre Company, arranged and numbered as follows:
Some distance west of the station there was a lead track, switched off from the main track and running clear through the company yard, for the greater part some distance from the main track, but substantially paralleled to it, and from this lead track several sidings ran out into the yard between the lead and main tracks, numbered from the main track 1, 2, 3, 4 — No. 4 being the one nearest the lead track.
That at the time of the occurrence the switching engine ran from the lead track onto track No. 4, and was connected with a train of 8 or 9 cars thereon, and on signal given, drew these cars out onto the main lead track, the train so constituted being long enough to extend past the switch of this lead track and in part onto the main line; on further signal given, the train was started back and the four rear cars having been detached on attaining sufficient speed, the engine slowed down, leaving these four rear cars of their own momentum to pass down onto the main lead track, at or near which the intestate was then standing, and was by them run over and injured so that he soon thereafter died.
The evidence showed that the four or five forward cars of the train were to be switched over to the house track, but that the rear cars holding coal for the Champion Fibre Company were thus kicked or showed down on the main lead track to be run to the coal chute of the fibre company further down on the yard.
There was no bell rung nor signal given when this train was started back after being pulled out of track 4 and no one was on the cars at the time to control them or to signal to any one who might have been on the main lead track.
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Plaintiff alleged and claimed that on 28 July, 1918, her intestate, an employee of the railroad company, under charge and control of defendant, was negligently run over and killed by the kicking or shunting of cars on to the track on or near which the intestate was standing at the time.
There was denial of liability by defendant, plea of contributory negligence and assumption of risk, etc. The proof showed that the intestate left him, surviving, his widow, the present plaintiff, and two infant children, a girl, Vernell Moore, three to four years of age, and a boy, Maurice or Morris Moore, aged one month or over, dependent on intestate within the meaning of the statute, and on this and further evidence offered, the jury rendered the following verdict:
"1. Was the plaintiff's intestate killed by the negligence of the defendant, as alleged in the complaint? Answer: `Yes.'
"2. Did the plaintiff's intestate, by his own negligence, contribute to his death, as alleged in the answer? Answer: `Yes.'
"3. Did the plaintiff's intestate assume the risk of being killed in the way and manner he was killed? Answer: `No.'
"4. What damage, if any, is plaintiff entitled to recover for herself, as the widow of her intestate? Answer: `$1,000.'
"5. What damage, if any, is plaintiff entitled to recover for the infant, Vernell Moore? Answer: `$2,000.'
"6. What damage, if any, is plaintiff entitled to recover for the infant, Morris Moore? Answer: `$2,000.'
Judgment for the aggregate amount on this verdict for plaintiff, and defendant excepted and appealed, assigning errors.
On the argument before us, defendant's counsel rested their right to a new trial upon the two objections, first that the question of damages was submitted on separate issues as to each of the dependents, second that on the entire testimony defendant's motion for nonsuit should have been allowed.
In reference to the first position, it has been recently held with us in two or more cases where the question was directly considered that under the Employer's Liability Act and the authoritative Federal decisions construing the same, the award of damages might be properly assessed upon separate issues. Hudson v. R. R., 176 N.C. 488; Horton v. R. R., 175 N.C. 472-477.
In Horton v. R. R., the Court, in approving a verdict similar in form to that rendered in the instant case, said: "Under the State statute the jury assesses the value of the life of the defendant in solido, which is disbursed under the statute of distributions. Under the United States statute, the jury must find as to each plaintiff what pecuniary benefit each plaintiff had reason to expect from the continued life of the deceased, and the recovery must be limited to compensation of those relatives in the proper class who are shown to have sustained some pecuniary loss. R. R. v. Vreeland, 227 U.S. 173; R. R. v. Zachary,232 U.S. 248. In the latter case the Court said: `The statutory action of an administrator is not for the equal benefit of each of the surviving relatives for whose benefit the suit is brought. Though the judgment may be for a gross amount, the interest of each beneficiary must be measured by his or her individual pecuniary loss. That apportionment is for the jury to return. This of course excludes any recovery in behalf of such as show no pecuniary loss.'
"This was not overruled in R. R. v. White, 238 U.S. 207. In the latter case the defendant did not ask to have the damages apportioned by the jury, but moved for arrest of judgment after the verdict was rendered because the verdict was a general one. The Court merely held that the verdict was not void because not apportioned and that the apportionment was no concern to the defendant, who can not be heard if it did not except on the trial. None the less the plaintiff has a right, as in this case, to have the jury apportion the recoveries."
Under the Federal decisions referred to in this excerpt, even if the question of damages had been submitted on a single issue as defendant desired, the estimate of the amount would have been determined according to the rule or principle expressed in these separate issues, and to our minds the exception presents no substantial objection to the validity of the trial.
As to the second objection, it is the rule prevailing in both State and Federal procedure that on a motion for involuntary nonsuit, equivalent with us to a demurrer to the evidence the facts presented which make in favor of plaintiff's claim, must be accepted as true and interpreted in the light most favorable to him. Lamb v. R. R., at the present term, p. 619, citing, among other authorities, Aman v. Lumber Co., 160 N.C. 369; Biles v. R.R., 143 N.C. 78; Chinoweth v. Haskell, 3 Peters, 92; Pawling v. U.S., 4 Cranch, 219.
Considering the record in view of this principle, there were facts in evidence on the part of plaintiff tending to show that intestate at the time of his death was the member of a switching crew engaged at the time in shifting cars on the railroad yards at Canton, N.C. under the control and direction of the yardmaster, Jesse Harrison. That at this
station there was the main railroad track running east and west and just south of this and parallel was a siding known as the house track for the use and occupation of cars hauling general freight.
North of the main track were a number of sidings, principally for cars hauling freight, etc., for the Champion Fibre Company, arranged and numbered as follows:
Some distance west of the station there was a lead track, switched off from the main track and running clear through the company yard, for the greater part some distance from the main track, but substantially paralleled to it, and from this lead track several sidings ran out into the yard between the lead and main tracks, numbered from the main track 1, 2, 3, 4 — No. 4 being the one nearest the lead track.
That at the time of the occurrence the switching engine ran from the lead track onto track No. 4, and was connected with a train of 8 or 9 cars thereon, and on signal given, drew these cars out onto the main lead track, the train so constituted being long enough to extend past the switch of this lead track and in part onto the main line; on further signal given, the train was started back and the four rear cars having been detached on attaining sufficient speed, the engine slowed down, leaving these four rear cars of their own momentum to pass down onto the main lead track, at or near which the intestate was then standing, and was by them run over and injured so that he soon thereafter died.
The evidence showed that the four or five forward cars of the train were to be switched over to the house track, but that the rear cars holding coal for the Champion Fibre Company were thus kicked or showed down on the main lead track to be run to the coal chute of the fibre company further down on the yard.
There was no bell rung nor signal given when this train was started back after being pulled out of track 4 and no one was on the cars at the time to control them or to signal to any one who might have been on the main lead track.
The yardmaster at the precise time of the killing was not immediately present, but had gone a hundred feet or more over toward the house track to run a child off from that track, where four of these cars were to be presently placed, and intestate at the time standing on or near the main lead track was looking at the yard master engaged as stated.
There was no proof offered that the yardmaster had informed the crew, or any of them, where these four coal cars were to be placed, except by marking them with chalk on the side 2 x 2, or Champion Fibre Company, the testimony leaving it uncertain whether the intestate knew of this marking or what it signified.
There were facts in evidence also tending to show that at the time of
the occurrence, or immediately thereafter, some of the crew, including the yardmaster, asked the intestate while he was still conscious how it happened and he replied that he did not expect them to back on the main lead track, or that the train had backed on the wrong track. It was further shown, or there was evidence tending to show, that it was the custom to leave the fibre company cars on track No. 4 till they were to be run into the company yards to deliver their contents, and if these cars had been backed onto track No. 4 they would not have struck the intestate, and further, that while this yard on the north of the main track was used chiefly for the company's business, it was not in fact a closed yard, but there were tracks or trails along or across the same, near to the place of the killing not infrequently used by employees and others, and plaintiff also put in evidence three rules of the company. Rule 783, defining the duties of the yardmaster in terms as follows:
"They have charge of their respective yards, and of the making up and distribution of trains, and the handling of cars therein, and of all yard employees and engine men and train men while in the yard limits." And Rule 393: "They must not allow running or flying to be made when it can be avoided, and when unavoidable, such movements must be made with all the care necessary to absolutely prevent accident." Also Rule No. 30, to the effect that "the engine bell must be rung when an engine is about to move."
It was further testified that afterwards, the yardmaster, speaking of the occurrence, had said that he felt he was the cause of intestate's death. "That Moore was standing at his post ready to grab the coach, or car, as it came by, and something went wrong; that they either kicked or showed the cars in there, and they ran over him and knocked him off; that something went wrong; he did not say what it was," etc.
There is much evidence in the record tending to exculpate defendant, and to show that the death of the intestate was due to his own neglect, but this comes from defendant's testimony, or from an interpretation of the facts favoring this position, and applying the accepted rule that on a motion for involuntary nonsuit it is only the facts and inferences supporting plaintiff's claim may be properly considered, we think it clearly the permissible and reasonable conclusion that defendant's agents and employees on this occasion, and for whose conduct defendant is responsible, were not sufficiently careful of defendant's safety, and that their breach of duty was the proximate cause of intestate's death.
While this was a shifting yard of the company, there were facts in evidence tending to show that it was by no means a closed yard, but there were trails or paths along or down the tracks at or near the place.
In such case, with or without a rule, it is always considered highly dangerous to kick or shift cars onto a track detached from an engine,
and without any one in position to control their movements or warn persons who may be upon the track, employees or others.
There were also facts in evidence tending to show a custom that the fibre company's cars were always left on track No. 4 till they were needed by the company, and that there was no sufficient notice given that in this instance the custom would be departed from or that the cars were then required and were to be backed upon the main lead track where the intestate was standing. Four of these cars were to be backed on the house track, and Harrison, the yardmaster, was over there at the time driving a child off the house track, lending color to the inference that the train was to be presently backed on to the house track — a conclusion that finds much support in the declarations of the intestate made to several persons immediately after he was "struck," that he was not excepting the cars to come back on the lead track where he was standing, or "they had come back on the wrong track"; and further, in the declaration of the yardmaster "that something had gone wrong."
We are cited by counsel to the case of Aerkfetz v. Humphreys,145 U.S. 418, as a decisive authority in support of defendant's motion. That case could very well be upheld on the ground of contributory negligence of the plaintiff, a position that was much relied upon throughout the opinion, and which is not now a complete defense, nor one available on a motion to nonsuit. Grand Trunk Ry. v. Lindsay, 233 U.S. 42-47. It was shown, too, that the cars were attached to the engine, and were being moved at the right time, in the right place, and at a proper rate of speed, the single imputation of negligence being that no bell was rung or signal given at the time; no rule seems to have been shown, as in this case, permitting the construction that such a signal was required, nor was there any evidence of negligence ultra which might have misled the claimant to his hurt. And inHinson v. R. R., 172 N.C. 646, also referred to by counsel, plaintiff was injured while attempting to cross rails under the drawheads of cars, standing on a live track, with nothing to show that the engineer or others operating the train knew, or had any reason or opportunity to know, of plaintiff's position or danger, and to our minds neither of these decisions seems to us an opposite authority on the facts of this record. The case, we think, comes rather under S. Ry. v. Smith, 205 Fed., 360, and cases of that kind, which require that on evidence similar to that now presented the issue of negligence should be submitted to the jury.
There is no error, and the judgment on the verdict is affirmed.
No error.