Kesterson v. . R. R. , 146 N.C. 276 ( 1907 )

The court submitted the usual issues of negligence, contributory negligence, and damages. The jury found for plaintiff on all issues. From the judgment rendered the defendant appealed. (277) 1. The defendant set up in its answer the pendency of an action between the plaintiff and defendant for the same cause of action set up in the plaintiff's complaint in this action, which action was begun, before this action was commenced, in the Superior Court of Buncombe County, and was thence removed to the Circuit Court of the United States.

It is found as a fact that at the time of the issuing of the summons in this action the other action was pending in the Circuit Court of the United States, but that a judgment of nonsuit had been entered therein before the complaint in this action had been filed. The plea in abatement to this suit was properly overruled upon the facts.

The pendency of a suit, in personam, in a State court, which has not proceeded to judgment, cannot be successfully pleaded in abatement of a suit between the same parties for the same cause of action in a Federal court.

So, too, and for like reasons, an action of a similar nature which is pending, but has not proceeded to judgment, in a Federal Court, cannot be pleaded in abatement of a like suit in a State court. The point is decided in Sloan v. McDowell, 75 N.C. 29, where the reasons are given by Mr.Justice Reade for the distinction in this respect between suits for the same cause and between the same parties, pending in the courts of the same State, and where the causes are pending in courts of different sovereigns or jurisdictions. For this reason Curtis v. Piedmont, 109 N.C. 401, is not in point. There the former action was pending in the same court.

Had the action in the Circuit Court of the United States been prosecuted to judgment, it would have, upon proper plea, barred further prosecution in the State courts. Gordon v. Gilfoil, 99 U.S. 168; 1 Cyc., 38;North Muskequo v. Clark, 62 Fed., 494. The plea in abatement must also aver, and the proof affirmatively show, that the former (278) action is still pending at the time of the filing of the plea. 1 Enc. Pl. and Pr., 754; Phelps v. R. R., 5 Am. St., 867.

The effective part of the plea is that the former action is still pending. Here the jury find that a nonsuit was entered in the former action before the filing of the complaint, and, therefore, necessarily before the filing of the plea.

2. The only question remaining for consideration is the exception to the ruling of the court denying the defendant's motion to nonsuit.

The plaintiff's evidence tended to prove that one Collins was engaged in quarrying rock, and to facilitate operations and the handling of the output the defendant constructed a side-track alongside the quarry. Collins had control of the loading of cars. These cars, as required by Collins for the purposes of his business, were placed upon his side-track by the defendant. The side-track was built upon a heavy grade, estimated at 3 1/2 to 5 feet in 100, and on defendant's right of way. The bins, or hoppers, from which the crushed stone was discharged into the cars were built directly over said side-track, at the bottom of said grade. The elevation of said bins, or hoppers, was such as to allow the passage underneath of the defendant's gondola cars, with a space of 12 or 14 inches between the bottom of the bin and the top of the car. The evidence tends further to prove that it was customary for the defendant to place empty cars upon this side-track in the morning and to secure them so that they would stand upon the incline, and Collins' employees would let them down by gravity, one at a time, as needed for the purpose of being loaded, regulating and controlling their movements and stopping them at the proper place by the use of hand-brakes on said cars, and the defendant's freight trains would take out the loaded cars the following night or morning. The empty cars would stand upon the grade if the brakes were set on each, but for greater security it was customary to block or scotch the front car with a piece of wood, and, when this car was moved, to scotch the next car, and so on.

Collin's employees had nothing to do with placing the empty (279) cars on the quarry siding. In the language of the witness Allred, "It was customary for them (the railroad people) to put them in there and hold them."

At the time of the injury the plaintiff was in the employ of Collins, working in said quarry. Upon the occasion in question he was required by his employer to assist in letting down the empty cars for the purpose of being loaded. He loosed the brakes and brought down the front car to the bin and, as he passed under it, the remaining cars, which had been left by defendant on the side-track, as usual, not having brakes on, or not being checked, rushed down on the front car and knocked plaintiff off and seriously injured him. They had been held in place by the front car, and when the brakes on it were released and the car moved forward, the others, the brakes not being on, smashed into the front car when plaintiff stopped it under the bin.

It is true that the plaintiff was the servant of Collins and not of defendant, and that there were no contractual relations existing between the plaintiff and the defendant company. Yet there was that connection between Collins and the defendant in respect to the operations of the quarry which gave the employees of Collins the right to rely upon the established usuage [usage] of fastening all the cars by brakes being carefully observed by defendant. The testimony of plaintiff's witnesses tends strongly to prove that when defendant's agents delivered the cars on the greatly inclined siding they always set the brakes on each car, and that on this occasion they set the brakes on the front car only, and did not check or set the brakes on the others.

This custom was known to plaintiff, and that he relied on it when he moved the front car is evident from his own testimony, for he (280) says he "would not for the world have taken that car out" had he known those behind it had been left with brakes off.

There is a class of cases in which one has been held liable to another in the absence of any contractual or other relation between them. This belongs to that class. The act of negligence in leaving the cars with brakes off, or not checked, under such circumstances and conditions, in violations of defendant's custom and usage, known to plaintiff and the other employees of Collins, was highly dangerous to them, and renders the defendant liable for the injury sustained in consequence. Roddy v. R. R., 21 Am. St., 333; Thomas v. Winchester, 6 N.Y. 397; 2 Sutherland Damages, 435.

While no contractual relation existed between plaintiff and defendant, yet Collins and the defendant had such business relations that each owed the duty to the other and his employees of properly discharging his part of the joint undertaking in respect to any matter exclusively devolving upon him.

Plaintiff had nothing to do with checking or fastening the cars properly with brakes when they were delivered on the side-track. That was a part of defendant's obligation, and in its discharge a certain usage had been established. Without plaintiff's knowledge, this usage was not observed on one occasion, resulting in injury to him.

The defendant is, therefore, liable for the consequent result. In respect to defendant's contention in regard to contributory negligence, we think his Honor might well have charged that there was no evidence of that.

No error.

Cited: Mumpower v. R. R., 174 N.C. 743.

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