BONEY 7. ATLANTIC COAST LINE R. Co.

(Supreme Court of North Carolina, May 3, 1911.)

[71 S. E. Rep. 87.]

Evidence—Opinion Evidence-Admissibility.—In the absence of a finding or admission that a witness is an expert, the exclusion of a question calling for expert testimony is not erroneous.

Evidence Opinion Evidence-Subject-Matter. The opinion of a witness, not present at the accident, is not admissible as to what would have been the effect on a train and its engineer, if the latter had only been running six miles an hour, as the rules required, when he ran into a train slowly moving in the same direction, trying to get out of the way; the jury being equally competent to form an opinion.

Appeal and Error-Exclusion of Evidence-Harmless Error-Burden of Showing Prejudice.—A party complaining of the exclusion of a question asked a witness, who does not show what the answer would have been, does not show that he was prejudiced.

Master and Servant-Injury to Servant-Contributory Negligence -Instructions.*-In an action for the death of a servant, requested instructions submitting the issue of decedent's contributory negli gence are properly modified by adding the element that the acts relied on to show contributory negligence must have been the proximate cause of his death.

Master and Servant Injury to Servant-Contributory Negligence -Issues. A defendant, in an action for the negligent death of a servant, must allege and prove contributory negligence, and instructions on contributory negligence must be limited to the facts alleged and proved.

Master and Servant-Injury to Servant-Question for Jury.— Where, in an action for the death of an engineer running into an open switch and colliding with a train, the evidence showed that the injury occurred in the nighttime in a railroad yard where there were numerous tracks and switches, the question whether by ordinary care decedent could have discovered the absence of any light at the switch in time to have stopped the train was for the jury.

*For the authorities in this series on the question whether contributory negligence must have been, in order to bar recovery, the proximate cause of the injury sued for, see last foot-note of Basler v. Sacramento Gas, etc., Co. (Cal.), 38 R. R. R. 554, 61 Am. & Eng. R. Cas., N. S., 554.

For the authorities in this series on the subject of the necessity of pleading contributory negligence, see first foot-note of Chicago B. & Q. R. Co. v. Cook (Wyo.), 33 R. R. R. 530, 56 Am. & Eng. R. Cas., N. S., 530.

For the authorities in this series on the subject of the burden of proving contributory negligence, see last foot-note of Tecker v.

Boney v. Atlantic Coast Line R. Co

Master and Servant-Injury to Servant-Negligence-Contributory Negligence.‡-An engineer running a first-class train on the main line may assume that the company has performed its duty to have the track through its yard clear five minutes before his train reaches a switch, and that if there is danger that it wil! turn the danger signal to the main line, and whether such an engineer, who knew that there was no light at a switch and who did not stop his train, failed to exercise ordinary care was for the jury.

Master and Servant-Injury to Servant-Contributory Negligence.§-The negligence of a servant is not contributory negligence defeating an action for his death, unless it is the cause of the accident, or unless the master, by the exercise of ordinary care, could not have averted the injury, notwithstanding the servant's negligence.

Master and Servant-Injury to Servant-Contributory Negligence -Proximate Cause.—Where, in an action for the death of an engi- . neer running into an open switch and colliding with another train, the evidence showed that an employee was at the switch and knew it was broken when decedent's train was 14 miles distant, that the employee could have turned the red light to the main line, but failed to do so, and that if he had done so the engineer could have seen it in time to have stopped the train, that the rules of the company provided that the absence of any light at a switch was notice of danger, and that the engineer did not regard the rule, there was evidence from which it might be found that the negligent failure to display the red light at the switch was the proximate cause of the

Seattle, etc., R. Co. (Wash.), 38 R. R. R. 229, 61 Am. & Eng. R. Cas., N. S., 229; first foot-note of Danskin v. Pennsylvania R. Co. (N. J.), 37 R. R. R. 414, 60 Am. & Eng. R. Cas., N. S., 414; last paragraph of first foot-note of Illinois Cent. R. Co. v. O'Neill (C. Č. A.), 37 R. R. R. 99, 60 Am. & Eng. R. Cas., N. S., 99.

For the authorities in this series on the subject of the right of a railroad employee to assume that his master or the latter's representative has or will perform its duties to him, see third footnote of Hardy v. Chicago, etc., Ry. Co. (Iowa), 38 R. R. R. 763, 61 Am. & Eng. R. Cas., N. S., 763; last paragraph of first foot-note of Korah v. Chicago, etc., Ry. Co. (Iowa), 38 R. R. R. 493, 61 Am. & Eng. R. Cas., N. S., 493; seventeenth head-note of Grand Trunk W. Ry. Co. v. Poole (Ind.), 38 R. R. R. 477, 61 Am. & Eng. R. Cas., N. S., 477; third foot-note of Long Pole Lumber Co. v. Gross (C. C. A.), 37 R. R. R. 669, 60 Am. & Eng. R. Cas., N. S., 669; footnote of Redmond v. Quincy, etc., R. Co. (Mo.), 37 R. R. R. 283, 60 Am. & Eng. R. Cas., N. S., 283.

See last paragraph of foot-note of Pratt v. Southern Ry. Co. (Ala.), 35 R. R. R. 751, 58 Am. & Eng. R. Cas., N. S., 751; last paragraph of foot-note of Bowen v. Pennsylvania R. Co. (Pa.), 29 R. R. R. 463, 52 Am. & Eng. R. Cas., N. S., 463; last foot-note of Nashville, etc., Ry. Co. v. Hayes (Tenn.), 26 R. R. R. 387, 49 Am. & Eng. R. Cas., N. S., 387.

See last foot-note of Chesapeake & O. R. Co., v. Lang (Ky.), 36 R. R. R. 630, 59 Am. & Eng. R. Cas., N. S., 630.

Boney v. Atlantic Coast Line R. Co

accident, notwithstanding the absence of any light at the switch. and the engineer's failure to consider that fact as notice of danger, warranting the refusal of an instruction that disobedience of the rules would be contributory negligence barring recovery for the engineer's death.

Negligence-Contributory Negligence-Burden of Proof.-One relying on contributory negligence must prove facts from which the inference of contributory negligence must be drawn by men of ordinary reason.

Master and Servant-Injury to Servant-Negligence-Res Ipsa Loquitur.-That an engineer ran his train into an open switch and collided with another train raised a presumption of actionable negligence of the railway company, justifying the jury in finding negligence, unless satisfied on all the evidence that there was none.

Master and Servant - Contributory Negligence - Last Clear Chance. Where there is evidence that, though a servant was negligent, the master had the last clear chance to avoid injuring him, the court must submit the issue of liability of the master on the theory of last clear chance.

Master and Servant-Injury to Servant-Negligence.—In an action for the death of an engineer running his train into an open switch and colliding with another train, evidence held to justify a finding of actionable negligence.

Master and Servant-Injury to Servant-Contributory Negligence. -In an action for the death of an engineer running his train into an open switch and colliding with another train, evidence held to justify a finding that the light giving notice of safety was turned on the main line, so that the rule of the company that the absence of a light must be regarded as a stop signal did not affect the right of recovery.

Walker and Brown, JJ., dissenting.

Appeal from Superior Court, Duplin County; Whedbee, Judge. Action by E. Boney, administrator of G. W. Boney, deceased, against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover damages for the killing of the plaintiff's intestate by the defendant.

The plaintiff alleges that his intestate, G. W. Boney, was in the employment of the defendant as engineer, and that he was killed on the main line of the defendant near South Rocky Mount, while on duty, at 2:30 o'clock, a. m. of November 6,

See last foot-note of St. Louis, etc., R. Co. v. Ramsey (Ark.), 38 R. R. R. 787, 61 Am. & Eng. R. Cas., N. S., 787; second headnote of Finch . Atlanta & C. A. L. Ry. (S. C.), 38 R. R. R. 758, 61 Am. & Eng. R. Cas.. N. S., 758; first head-note of Midland Valley R. Co. v. Fulgham (C. C. A.), 38 R. R. R. 458, 61 Am. & Eng. R. Cas., N. S., 458.

Boney v. Atlantic Coast Line R. Co

1907, by running into an open switch and coming in collision with another train. The plaintiff alleges various acts of negligence on the part of the defendant. The defendant denies that it was negligent, but admits that the intestate was killed while on duty in the manner alleged.

The defendant also pleads contributory negligence as follows: For a further defense:

First. That the plaintiff's intestate was a locomotive engineer, and at the time of his death was engineer on a passenger train running from Florence, S. C., to Rocky Mount and beyond; that the printed schedule containing the time-table of the defendant's different trains, and also the rules and regulations to be observed by conductors and engineers running their several trains, are furnished when issued to all of its conductors and engineers; that the time-table and schedule which was in force and effect at the time mentioned in the complaint was numbered 10 and went into effect September 15, 1907, at one minute past 12 a. m.; that this schedule or time-table contained the following rules and regulations: "All trains passing through Rock Mount and South Rocky Mount will approach passenger station at Rocky Mount, N. & C. main line crossover, crossover at Bassett street telegraph office, South Rocky Mount and middle yard crossover, under full control, expecting to find tracks occupied. Trains will not exceed six miles per hour passing these points." That the collision mentioned in the complaint happened at one of the points mentioned in the said rules above quoted. A copy of this schedule containing the said rules and regulations was duly given and furnished to the plaintiff's intestate at the time or before the said schedule and regulations and rules went into effect, and it was his supreme duty to inform himself of all rules and regulations and the time-table applying to his district, and in particular to carefully obey and comply with the rules and regulations above quoted. That in addition to this the following rule was issued from the transportation department: "Rocky Mount, N. C., Sept. 9, 1907. Bulletin No. 18. C. & E. and All Concerned: All trains passing Rocky Mount and South Rocky Mount will approach passenger station at Rocky Mount, N. & C. main line crossover, crossing at Bassett street telegraph office, South Rocky Mount and middle yard crossover, under full control, expecting to find track occupied. Trains will not exceed six miles per hour passing these points. W. B. Darrow, Superintendent Transportation. Richmond, Manchester, Weldon, Rocky Mount, South Rocky Mount, Pinners Point, Tarboro, Contentnea, Wilmington, Florence, Selma."

Second. Defendant further alleges that the plaintiff's intestate was guilty of negligence which directly contributed to bring about the injury complained of in the complaint, in that the plaintiff's intestate, while approaching the point where the

Boney v. Atlantic Coast Line R. Co

accident occurred, was given the danger or stop signal by waving a lantern in the usual manner and acknowledged the same with his whistle, but failed to stop his train in time to avoid the accident; that if plaintiff's intestate had obeyed the instructions given in the schedule or time-table and bulletin herein above mentioned he could have stopped his train in time to have avoided the accident, but that at the time he was disobeying and violating the said rules and regulations and instructions aforesaid, and running at a very high rate of speed between 40 and 50 miles per hour.

The following facts seem to be undisputed: (1) That the intestate was running a first-class passenger train, as engineer, at the time he was killed, on the main line of defendant; that the train was going north and the track was straight for more than two miles. (2) That he was killed by running into an open switch, and colliding with another train. (3) That as he approached the switch his train was running at the rate of 30, 35, or 40 miles an hour. (4) That the rules of the defendant required him to approach this switch at six miles an hour. (5) That a switch lamp was maintained at this switch, with a white and red light, and when the white light was turned to the track it indicated safety, and that the switch was all right for the main line, and the red light indicated danger. (6) That the following rules were in force:

"Rule 13, page 15. Any object waved violently by any one on or near the track is a signal to stop." "Rule No. 934. They (engineers) must have a copy of the current time-table, to which they must conform in running their trains, and a full set of signals which they must keep in good order and ready for immediate use." "Rule 27. A signal imperfectly displayed, or the absence of a signal at a place where a signal is usually shown, must be regarded as a stop signal, and the fact reported to the superintendent." "Rule 7, page 14. Employees whose duty may require them to give signals must provide themselves with proper appliances, keep them in good order and ready for immediate use." "Rule 91a, page 31. The speed of a train would ordinarily be that of its schedule, but in cases of delay, may be so moderately increased as in the judgment of the engineer and conductor will be safe and prudent, due consideration always being given to condition of track, weather and all circumstances." "Rule 93, page 32. Within yard limits the main track may be used, protecting against third and fourth class trains. Third and fourth class and extra trains must move within yard limits prepared to stop, unless the main track is seen or known to be clear. Rule 93a, page 32. Engines working within yard limits must clear the time of first-class trains five minutes. Enginemen must know that switches are properly set before they attempt to pull in or out of siding.” “B-72.