McGraw v. Southern Railway Co. , 206 N.C. 873 ( 1934 )

Bbogdem, J.

~W. R. Pendry had been in the employ of the defendant for twenty-two years, serving as conductor and flagman for a freight train, and was an experienced trainman and thoroughly acquainted with switching operations at Barber’s Junction and elsewhere along the line. On the night of 16 April he was a flagman on a freight train bound for Winston-Salem. The train crew consisted of Ramseur, conductor, Dug-gins, engineer, Armstrong, fireman, and Daniels, head brakeman. When the train arrived at Barber’s Junction at about four-forty in the morning it became necessary to perform a switching operation. The engine was pulling twenty-one cars into Barber’s Junction. One of these cars was set off on a storage track. Leaving the twenty cars, the engine moved to the Park and picked up nineteen cars. Then the engine backed into the “Y” and “coupled up” to the twenty cars originally in the train. Pendry made that coupling. About eight o’clock on the morning of 17 April, 1932, the mangled body of Pendry was found about ten or twelve rail lengths from the point of the switch of the Mooresville main line. The body was “face up.” The left leg was cut off. “There were signs of something heavy having been dragged along the track a distance of fifty or seventy-five yards.” A short distance from the body down the track was a pistol of the deceased “with the hammer cocked.” “His watch was between the body and the pistol.” Farther on, the brass whistle on the back of the caboose was found. “It appeared like it had been broken, like it had screwed part of it out, and then suddenly broken off.” Pendry was last seen alive when he made the coupling and went back to the rear of the train. “He was giving the back-up signal on the north end of the caboose.” When the train pulled out on its journey the conductor went into the caboose and saw Pendry’s lantern sitting in the rounds of an old chair that was lying down in the caboose. His brake stick was lying on the end of the chair. Nothing was disturbed or turned over in the caboose. After Pendry made the coupling the conductor had instructed him “to go back and protect the rear of the train.” The rules of the defendant did not require the “flagman to use the whistle when the train is backing up, but it is there and can be used for such purpose.” But the rules with reference to backing at the west “Y” were to the effect that a man “would ride the rear of the train backing out of the west ‘Y’ at Barber’s.”

There was opinion evidence from men experienced in the operation of freight trains to the effect that reducing the speed of the engine under the- circumstances from five or six miles an hour to one mile within a distance of two car lengths would produce an unusual and violent jerk at the end of, the train or caboose.

The foregoing word-picture produces the paramount question of law involved in the case, to wit: Was there evidence of negligence on the part of the defendant and that such negligence was the proximate cause of the death of Pendry?

In arriving at a solution of the legal problem presented three preliminary observations are pertinent:

1. “It having been admitted that plaintiff’s intestate was engaged in interstate commerce at the time of his death, it necessarily follows that the liability of the defendant must be determined solely by the Federal Employers’ Liability Act as construed and applied by the courts of the United States.” Wolfe v. R. R., 199 N. C., 613, 155 S. E., 459.

2. The scintilla rule has been definitely and repeatedly rejected so far as the Federal Courts are concerned. Penn. R. R. Co. v. Chamberlain, 288 U. S., 333.

3. The principle-of res ipsa loquitur has no application. This doctrine permits and warrants an inference of negligence from facts. It has never been extended far enough to supply or create necessary facts, and, in addition, draw an inference from such vital facts so created. See Springs v. Doll, 197 N. C., 240, 148 S. E., 251.

The only evidence of negligence disclosed by the record consists of the opinion testimony of certain trainmen that the reduction of the speed of the train when it was backing from five or six miles an hour to one mile an bour within a distance of two car lengths, would tend to produce an unusual and violent jerk of the rear of the train or caboose. The operation of a freight train is not a sight-seeing tour. It is a rough process, under most favorable conditions, and attended with many unavoidable perils which are well known to every experienced trainman. Notwithstanding, “it is recognized in both jurisdictions that railroad companies in the operation of their freight trains are held to a high standard of care reasonably commensurate with the risks and dangers usually attendant upon the work, and although negligence may not be inferred from the ordinary jolts and jars incident to their operation, it may be imputed where there has been a 'sudden, unusual, and unnecessary stopping of such trains, likely to and which do result in serious and substantial injuries to employees or passengers thereon.’ ” Hamilton v. R. R., 200 N. C., 543, 158 S. E., 75.

The plaintiff contends that after making the coupling, Pendry walked back to the north end of the caboose and gave the backing-up signal to the engineer, and that he then went into the caboose, set down his lantern and brake stick, and went out on the rear platform of the caboose to blow the whistle while the train was backing, and that, while standing there in the line of his duty and in obedience to the rules of the defendant, a sudden, violent, unusual and unnecessary jerk was given the train and the deceased was thereby thrown off the rear of the platform beneath the wheels of the backing train, carrying the whistle with him as he fell to his death.

The defendant asserts that there was no unusual jerk or movement of the train, and that, while certain trainmen, who were not present and knew nothing about the actual facts and circumstances, testified that in their opinion there was an unusual jerk, nevertheless Daniels, the head brakeman, who was present and a witness for the plaintiff, said: “Nothing unusual happened to call my attention to the fact that he was stopping to pick me up.”

The opinion testimony, stricken out by the trial judge, relating to the effect of an alleged sudden reduction of the speed of the train upon the rear end or caboose, was competent. It is the function of the jury to weigh it and say what it is worth. Wilkinson v. Dunbar, 149 N. C., 20, 62 S. E., 748; Richardson v. Woodruff, 178 N. C., 46, 100 S. E., 173. Assuming, however, that there was more than a scintilla of evidence of an unusual jerk of the train, was such jerk the proximate cause of the death of Pendry? "Where was Pendry at the time the jerk came? His lantern and brake stick were in the caboose. No one saw him on the rear of the platform. Had he fallen from the train before the jerk?

Tbe general rule of law in determining liability in tbe Federal Courts is stated in Atchison, Topeka, & Santa Fe Railway Company v. Toops, Admr., 281 U. S., 351, 74 L. Ed., 896, as follows: “But proof of negligence alone does not entitle tbe plaintiff to recover under tbe Federal Employers’ Liability Act. Tbe negligence complained of must be tbe cause of tbe injury. Tbe jury may not be permitted to speculate as to its cause, and tbe case must be withdrawn from its consideration unless there is evidence from which tbe inference may reasonably be drawn that tbe injury suffered was caused by tbe negligent act of tbe employer. . . . Even though we assume that in all tbe respects alleged tbe petitioner was negligent, tbe record does not disclose any facts tending to show that tbe negligence was tbe cause of tbe injury and death. . . . What actually took place can only be surmised. Whether be was run down on tbe track by tbe first car or be attempted unsuccessfully to board tbe train on one side or tbe other or succeeded and in either case finally came to bis death by falling under or between tbe moving cars is a matter of guesswork.” To like effect is tbe statement of law in New York Central R. R. Co. v. Ambrose, 280 U. S., 486, 74 L. Ed., 562, as follows: “Tbe fact of accident carries with it no presumption of negligence on tbe part of tbe employer, and it is an affirmative fact for tbe injured employe to establish that tbe employer has been guilty of negligence — tbe evidence must point to tbe fact that be was. And where tbe testimony leaves tbe matter uncertain and shows that any one of half a dozen things may have brought about tbe injury, for some of which tbe employer is responsible and for some of which be is not, it is not for tbe jury to guess between these half a dozen causes and find that tbe negligence of tbe employer was tbe real cause, when there is no satisfactory foundation in tbe testimony for that conclusion. If tbe employe is unable to adduce sufficient evidence to show negligence on tbe part of tbe employer, it is only one of tbe many cases in which tbe plaintiff fails in bis testimony, and no mere sympathy for tbe unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs.”

In tbe case at bar tbe conductor bad directed tbe deceased to look after tbe rear of tbe train. Tbe rules of tbe company required that be should be on tbe rear of tbe train in a “backing-up” operation. Tbe law assumes that an employee will obey tbe rules, nothing else appearing, and that be will exercise in tbe absence of proof to tbe contrary, due care for bis own safety. He was last seen alive on tbe caboose when be gave tbe signal. He bad been inside tbe caboose to set down tbe lantern and brake stick, and, under tbe circumstances, it would seem more reasonable to infer that in executing tbe orders of bis superior and in obedience to tbe rules of bis employer, be proceeded to the rear of the caboose. Such inference, however, is not binding upon a jury when the jurors are called upon to find the facts fairly and reasonably in the light of all the testimony. In other words, was Pendry on the rear of the train? Was there an “unusual, violent and unnecessary” jerk of the train that threw him off to his death? These are controverted questions.

However, the Court is of the opinion that there was sufficient evidence to be submitted to the jury within the contemplation of the Federal rule.

Reversed.

Stacy, C. J., dissents. ScheNck, J., took no part in the consideration or decision of this case.