Graham v. Atlantic Coast Line Railroad , 240 N.C. 338 ( 1954 )

Bobbitt, J.

Tbe complaint discloses that Grabam was chief maintenance man for a section of defendant’s signal system along its main line; further, that while engaged in the performance of his duty, he was struck and killed on the main line by the train known as the Bennettsville freight. While these hints that Graham and the defendant were engaged in interstate commerce are discoverable, no allegations to this effect are included in the complaint. Nor is there any allegation with reference to the dependents of Graham. In short, the allegations are appropriate as a statement of a cause of action for damages for wrongful death under the North Carolina statutes now codified as G.S. 28-113, 28-114, and G.S. 60-64 et seq.

During the presentation of plaintiff’s testimony it became apparent that both Graham and defendant were engaged in interstate commerce on the occasion of Graham’s death. Hence, the plaintiff’s sole remedy was under the Federal statute. Mondou v. New York, N. H. H. R. Co., 223 U.S. 1, 56 L. Ed. 327, 32 S. Ct. 169, 38 L.R.A. (N.S.) 44; Wilson v. Massagee, 224 N.C. 105, 32 S.E. 2d 335, 156 A.L.R. 922, and cases cited therein.

Defendant thereupon moved to dismiss the action “on the ground that the suit was brought as an intrastate action under the laws of North Carolina, whereas the evidence shows the case arises under the Federal Employers’ Liability Act.” The court overruled defendant’s motion to dismiss and allowed plaintiff to amend her complaint so as to include allegations appropriate to an action under the Federal statute, principally allegations that both employee and employer were engaged in interstate commerce and that plaintiff, widow of Graham, was his sole dependent and as such was the beneficiary of any recovery. Defendant excepted and now urges that a new cause of action was introduced more than three years from the date of Graham’s death and must be dismissed. 45 U.S.O.A. sec. 56.

These facts are noted. Graham’s death occurred 8 July, 1950. The action was commenced 1 July, 1951. The trial was at October Term, 1953. The facts constituting the tort, the basis of defendant’s liability, are alleged in the original complaint. The amendment introduces no new allegations in this field.

Upon the facts alleged, conceding that plaintiff initially was in error in believing that her remedy was under the State statute, can the court permit her, more than three years after Graham’s death, to amend her complaint so as to conform to evidence plainly disclosing that the employee and the employer were engaged in interstate commerce on the occasion of Graham’s death and so as to allege that the widow was the sole dependent of Graham and .the beneficiary of any recovery according to tbe rule of damages prescribed by tbe Federal statute? If so, is tbis a new cause of action as of tbe date of tbe amendment ?

Tbe power of tbe trial court under tbe State statute to allow tbe amendments is plain. Gr.S. 1-163. Whether these amendments introduced a new cause of action, then barred by tbe Federal statute, is governed by tbe Federal law. Seaboard A. L. R. Co. v. Renn, 241 U.S. 290, 293, 36 S. Ct. 567, 60 L. Ed. 1006; New York C. & H. R. R. Co. v. Kinney, 260 U.S. 340, 43 S. Ct. 122, 67 L. Ed. 294; Williams v. Trustees of New York, N. E. & H. R. Co., 90 N.E. 2d 320 (Mass.).

In Missouri, K. & T. R. Co. v. Wulf, 226 U.S. 570, 33 S. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914 B, 334, suit was brought under tbe Kansas statute by tbe mother as sole heir and next of kin to recover on account of her son’s death. After tbe time prescribed for commencement of an action under tbe Federal statute, she was permitted to amend so as to prosecute tbe action in her capacity as administratrix and to allege that her intestate and tbe defendant were engaged in interstate commerce- on tbe occasion of bis death.

In New York G. & H. R. R. Co. v. Kinney, supra, “after several trials and about seven years and a half after tbe suit was begun, tbe plaintiff was allowed to amend bis complaint by alleging that, at tbe time of tbe collision, tbe plaintiff and tbe defendant were engaged in interstate commerce.” Tbe Court, speaking through Mr. Justice Holmes, held that these amendments did not introduce a new cause of action but, quoting from the Renn case, supra, “merely expanded or amplified what was alleged in support of tbe cause of action already asserted . . . and was not affected by tbe intervening lapse of time.” Tbe opinion also quotes from Seaboard A. L. R. Co. v. Koennecke, 239 U.S. 352, 36 S. Ct. 126, 60 L. Ed. 324, tbis trenchant sentence: “Tbe facts constituting tbe tort were tbe same, whichever law gave them that effect.” Tbe great jurist neatly sums up tbe matter in these words: “Of course, an argument can be made on tbe other side, but when a defendant has bad notice from tbe beginning that tbe plaintiff sets up and is trying to enforce' a claim against it because of specified conduct, tbe reasons for tbe Statute of Limitations do not exist, and we are of tbe opinion that a liberal rule should be applied.” (Emphasis added.)

While tbe earlier decisions may have afforded a plausible basis for defendant’s position, tbe later decisions resolve all doubts adversely to defendant; and, upon the authoritative decisions cited, defendant’s motion to dismiss by reason of tbe amendments was properly overruled. New York C. & II. R. R. Co. v. Kinney, supra.

Defendant excepted to tbe court’s action in overruling its motion for judgment of involuntary nonsuit.

Adequate consideration of defendant’s position necessitates an analysis of the pleadings. Plaintiff’s basic position as to negligence is that defendant turned tbe unscbeduled Bennettsville freight onto the northbound track of the main line at Parkton, giving the locomotive engineer an order showing a clear track all the way to Fayetteville, when it knew that Graham and Gibson had left just thirty minutes or so before by motorcar on said track to check a defective signal south of Hope Mills; and that no information to this effect was given to those in charge of the Bennettsville freight. True, there are allegations as to the speed of the train, the blind curve in the cut north of Rock Fish Greek, the failure to ring the bell or blow the whistle, etc. However, these allegations are made in combination with, rather than independent of, plaintiff’s basic position that defendant was negligent under all the circumstances in turning the Ben-nettsville freight onto this section of the northbound track of the main line.

Defendant alleges contributory negligence on the part of Graham in these respects: (1) that, with knowledge that the Bennettsville freight was to run sometime that afternoon, he negligently failed to call the Train Dispatcher from a nearby railroad telephone for a further report as to “line-up” after completing the signal repair job and before returning to Parkton; and (2) that he negligently proceeded south on the northbound track when he could have removed the motorcar to the southbound track with greater safety at the place where the repair work was done and especially at a point some 600 yards to the north at the Hope Mills station. Defendant further alleges that Graham was negligent in that after he saw the approaching train he remained on the track when by the exercise of due care he could have got off and thus escaped injury and death; and that such negligence was the sole proximate cause of his death.

In this connection, it is noted that the Train Dispatcher at Rocky Mount who gave Graham the “line-up” for the “northbound” track about 2 p.m. testified that it was not necessary for Graham to call up again “under an hour” and that “they are safe in the line-up for an hour.” There is also evidence tending to show that the Bennettsville freight left Parkton about 2 :35 p.m. and that the motorcar and Graham were struck shortly after 2 :40 p.m. Thus, there is evidence tending to support the view that Graham and Gibson could and would have got to the road crossing where they were to remove the motorcar from the northbound to the southbound track, some 200-400 yards south off where the repairs were made and several miles north of Parkton, within an hour from the time Graham at Parkton had the telephone instructions from the Train Dispatcher at Rocky Mount. Too, while Graham had the “line-up” on the northbound track, he had no information as to “line-up” on the southbound track.

In order to recover under the Federal Employers’ Liability Act, plaintiff must prove that defendant was negligent and that such negligence was the proximate cause, in whole or in part, of Graham’s death. Tennant v. Peoria & P. U. R. Co., 321 U.S. 29, 64 S. Ct. 409, 88 L. Ed. 520. Contributory negligence of Graham would not bar a recovery by plaintiff. The effect would be that his dependent widow could not recover the full amount of damages sustained by her on account of his death but would be barred from recovery of the proportion of such damages attributable to Graham’s contributory negligence. 45 U.S.C.A. sec. 53. And since the 1939 amendment to the Federal Employers’ Liability Act, 45 U.S.C.A. sec. 54, Graham cannot be held to have assumed any risk of his employment when death results in whole or in part from the negligence of any of the agents of the railroad, the effect of the amendment being to obliterate from the law every vestige of the doctrine of assumption of risk. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S. Ct. 444, 87 L. Ed. 610, 143 A.L.R. 967. Decisions prior to the 1939 amendment must be considered in relation to the rule as to assumption of risk then embodied in the law. See Delaware, L. & W. R. Co. v. Koske, 279 U.S. 7, 49 S. Ct. 202, 73 L. Ed. 578; Strunks v. Payne, 184 N.C. 582, 114 S.E. 840. Thus, if the defendant’s oncoming train, rounding the curve, through the cut, was turned onto this track through negligence of the Train Dispatcher, neither Graham’s failure to anticipate its approach nor his inability to remove the motorcar under the circumstances of extraordinary known risk is a defense on the basis of assumption of risk.

Defendant’s position is that its negligence, if any, and the contributory negligence of Graham, had spent themselves; and a new factual situation had arisen. Then, with knowledge of the danger, Graham and Gibson undertook to remove the motorcar when they could have abandoned it and escaped injury; that Gibson got out of the way of the oncoming train; that Graham could have done so; and that Graham’s conduct in failing to abandon the motorcar and get off the track should be held to constitute the sole proximate cause of his death as a matter of law. Thus, defendant contends, its negligence, if any, was “insulated.”

It must be borne in mind that the alleged negligence of defendant upon which plaintiff relies is the fact that the oncoming train had been turned into this section of track without warning to those in charge that Graham and Gibson were there with the motorcar, not the failure of the locomotive engineer to stop the train after he saw or could have seen them. Indeed, so far as the evidence discloses, the train, under the conditions then existing, could not have been stopped within a shorter distance. This alleged negligence, if established, continued to the moment of actual impact and so constituted a proximate cause of Graham’s death. As stated by Seawell, J., in Henderson v. Powell, 221 N.C. 239, 19 S.E. 2d 876: “No negligence is ‘insulated’ so long as it plays a substantial and proximate part in the injury. Restatement of the Law, Torts, sec. 447.”

The defendant’s contention seems to be that since Graham, by abandonment of the motorcar, could have avoided injury and death, he must he held solely responsible therefor notwithstanding defendant’s negligence. The doctrine of last clear chance, which presupposes both negligence and contributory negligence, relates to a person having charge of an instrumentality who can but fails to bring it under control and so avoid inflicting injury. See Wade v. Sausage Co., 239 N.C. 524, 80 S.E. 2d 150, and cases cited therein.

While there is some conflict in the decisions, we are in agreement with the rule supported by the greater weight of authority, namely, that it is for the jury to say whether, under the circumstances then existing, Graham failed to exercise due care for his own safety, under the rule of the ordinarily prudent man, in undertaking to remove the motorcar from the track and in failing to get out of the way of the approaching train, and, if so, whether such negligence was a contributing proximate cause or the sole proximate cause of his death. Joice v. Missouri-Kansas-Texas R. Co., 354 Mo. 439, 189 S.W. 2d 568, 161 A.L.R. 383; Moran v. Atchison, T. & S. F. Ry. Co., 48 S.W. 2d 881 (Mo.); Newman v. Southern Ry. Co., 194 S.E. 237 (Ga.); Owen v. Kurn, 148 S.W. 2d 519 (Mo.); Texas Cent. R. Co. v. Bender, 75 S.W. 561 (Texas); International & G. N. R. Co. v. McVey, 81 S.W. 991 (Texas); Dailey v. Burlington & M. R. R. Co., 78 N.W. 722 (Neb.); Winczewski v. Winona & W. Ry. Co., 83 N.W. 159 (Minn.); Mitchum v. Chicago., R. I. & G. Ry. Co., 173 S.W. 878 (Texas); St. Louis, I. M. & S. Ry. Co. v. Morgan, 171 S.W. 1187 (Ark.); Illinois Cent. R. Co. v. Evans, 186 S.W. 173 (Ky.).

Three cases, Deere v. Southern Pac. Co. (C.C.A. 9th), 123 F. 2d 438, and Foreman v. Texas & New Orleans R. Co. (C.C.A. 5th), 205 F. 2d 79, cited by defendant, and Mathis v. Kansas City Southern Ry. Co., 74 So. 172 (La.), lend support to defendant’s position. While each of these cases is distinguishable factually, principally on the ground of the failure to show negligence on the part of the railroad company, statements in the opinions are in accord with defendant’s contentions here. But, after careful consideration, we adopt the majority view as stated above.

The case before us is distinguishable from those where an employee, in a position of safety, consciously exposes himself to imminent peril outside the line of his duty and injury or death results. Johnson v. Terminal R. Asso., 8 S.W. 2d 891, 61 A.L.R. 572, Annotation, 61 A.L.R. 579 (Mo.). Compare, Bobango v. Erie R. Co. (C.C.A. 6th), 57 F. 2d 667.

Temple v. Hawkins, 220 N.C. 26, 16 S.E. 2d 400, cited by defendant, is not in point. The plaintiff there, whose truck stalled on the crossing, could have but failed to get out and avoid injury. Under tbe State law bis right to recover was barred by bis contributory negligence.

We omit reference to decisions where tbe train ran down a motorcar or velocipede proceeding in tbe same direction for there tbe element of lack of knowledge of tbe train's approach until the time of impact is ordinarily tbe factor of greatest importance.

It appears now that if Graham bad abandoned tbe motorcar when be saw tbe approaching train be would in all probability have escaped from bis dilemma without injury. But be was and bad been in charge of this particular motorcar. It was bis employer’s property, entrusted to him for use in tbe course of bis employment. He owed a duty to bis employer to exercise due care under all tbe circumstances to save it from damage or destruction by removing it from tbe path of tbe oncoming train. At tbe same time, be was under tbe duty to exercise due care for bis own safety. While tbe company rules, offered by defendant, enjoined its employees to act always on tbe principle of safety first, Rule 3 specifically provides that “employees to whom motorcars are assigned are responsible for their use and condition”; and Rule 14 provides that “any violation of tbe foregoing rules will be regarded as cause for dismissal.” Moreover, tbe probable consequences to tbe oncoming train and its crew, as well as to tbe motorcar and to him and Gibson, in tbe event of a bead-on crash, were to be considered.

Nor can it be said as a matter of law that Graham did not have reasonable ground to believe that be and Gibson could complete tbe removal of tbe motorcar before tbe train got to it. Tbe Moran case, supra, while referring to Moran’s conduct in terms of the now obliterated doctrine of assumption of risk, contains this statement, apposite here: “There was evidence that Moran lacked only eight inches of being in tbe clear when tbe engine struck him. Evidence that be came so near getting in tbe clear tends to show that be bad reasonable grounds for believing that be would have time to remove tbe motorcar from tbe track, and that be did not appreciate tbe near and dangerous approach of tbe train. . . . Under tbe circumstances shown we cannot judicially say that Moran did not act as an ordinarily prudent person would have acted under tbe same circumstances, and therefore decline to bold, as a matter of law, that be assumed tbe risk.” And in tbe Bender case, supra, in relation to facts more favorable to defendant’s position than tbe facts here, tbe Court said: “Nor did appellee forfeit bis right to recover by trying to remove tbe handcar from tbe track. It is by no means clear from tbe evidence that a prudent man in bis situation would have pursued a different course.”

Whether, in attempting to save bis employer’s motorcar and to avoid tbe consequences of a bead-on collision, Graham’s actions were those of an ordinarily prudent person so situated, or were those of a foolhardy and •reckless person, indifferent to bis own safety, could not be answered as a matter of law. It was for determination by tbe jury.

Tbe conclusion we reach is that tbe issues of negligence and of contributory negligence were for the jury. If tbe jury bad found that Graham’s death was caused solely by bis own negligence, this would have required a negative answer to tbe first issue, embracing as it does both negligence and proximate cause. Tbe motion for judgment of involuntary nonsuit was properly overruled.

Even so, conflicting instructions to tbe jury on tbe issue of damages necessitate a new trial. It is noted that defendant’s position as to matters set out below are duly presented by proper exceptive assignments of error.

Tbe original complaint alleged that Graham’s estate bad been damaged by bis wrongful death in tbe amount of $40,000.00. When tbe amendments were allowed, tbe complaint as amended alleged that Graham’s widow as sole dependent and beneficiary bad been damaged by bis wrongful death in tbe amount of $40,000.00.

Upon reaching tbe issue as to damages, the court gave tbe jury full and correct general instructions on the subject of comparative negligence in relation to damages, to be applicable in tbe event tbe jury answered both tbe negligence and tbe contributory negligence issues in tbe affirmative, i.e., that tbe plaintiff was entitled to recover for tbe benefit of tbe widow only such portion of her total damages resulting from Graham’s death as was attributable to defendant’s negligence and was not entitled to recover such portion as was attributable to Graham’s negligence.

After these instructions tbe court reviewed at some length tbe plaintiff’s evidence and her contentions thereon to the effect that she bad been damaged by reason of Graham’s wrongful death in tbe amount of $40,-000.00. Tbe court then says, by way of reviewing defendant’s contentions : “Tbe defendant further contends that tbe sum of $40,000.00 is an exorbitant price and, even should you come to consider tbe third issue, that you should not award damages in any large amount like that or any other substantial amount, but tbe defendant contends it only should be in some amount, if any at all, much less than tbe amount contended for and demanded by tbe plaintiff in the action.”

In tbe review of contentions, nothing is said with reference to contentions as to diminution of total damages on account of Graham’s contributory negligence, if any, by tbe proportion of total damages attributable to Graham’s negligence. Tbe failure to include tbe respective contentions of tbe parties on this subject, after having reviewed fully tbe plaintiff’s evidence and contentions as to tbe damages tbe widow has suffered on account of tbe wrongful death of Graham, must be considered in tbe light of tbe court’s final word and summary instruction to the jury, to wit:

“So, gentlemen, if you come to consider that third issue as to damages, and if you award plaintiff damages in the case, the Court instructs you that the damages recoverable, if any, is limited to the present cash value or present worth of such loss as results to the beneficiary occasioned by her, that is by the plaintiff, Mrs. Graham, being deprived of the reasonable expectancy of pecuniary benefit because of the alleged wrongful death of her deceased husband and the amount to be allowed is limited strictly to the financial loss thus sustained.”

In the instruction, quoted above, the court, by inadvertence, instructed the jury that the plaintiff was to be awarded damages to compensate for the widow’s loss “by being deprived of the reasonable expectancy of pecuniary benefit because of the alleged wrongful death of her deceased husband.” (Emphasis added.) This final, positive and clear instruction obviously ignores the rule that, if Graham were guilty of contributory negligence (and a peremptory instruction on the contributory negligence issue had been given), the damages recoverable would be limited to the proportion of the total damages attributable to defendant’s negligence. We are constrained to hold that this final, explicit instruction to the jury, which relates plaintiff’s recoverable damages to the death of Graham rather than to the negligence of defendant, may have had a pervading influence on the minds of the jury and may well be reflected in their answer of the issue, “$36,334.00.”

As stated by Barnhill, J. (now C. J.), in S. v. Overcash, 226 N.C. 632, 39 S.E. 2d 810 : “When there are conflicting instructions to the jury upon a material point, the one correct and the other incorrect, a new trial must be granted. We may not assume that the jurors possessed such discriminating knowledge of the law as would enable them to disregard the erroneous and to accept the correct statement of the law as their guide. We must assume instead that the jury in coming to a verdict, was influenced by that part of the charge that was incorrect.” See cases cited in S. v. Overcash, supra; Dixon v. Brockwell, 221 N.C. 567, 42 S.E. 2d 680; Green v. Bowers, 230 N.C. 651, 55 S.E. 2d 192; In re Will of Kemp, 234 N.C. 495, 67 S.E. 2d 672; S. v. Howell, 239 N.C. 78, 79 S.E. 2d 235.

A new trial is ordered. This renders unnecessary the consideration of other exceptive assignments of error brought forward by defendant. None of them may be pertinent upon the retrial of the cause.

New trial.