ERROR TO THE SUPREME COURT OF THE STATE OF NORTH CAROLINA
White, McKenna, Holmes, Hughes, Van Devanter, Pitney, McReynolds
MR. JUSTICE McREYNOLDS delivered to opinion of the court.
Kenneth L. Gray, an experienced brakeman, was of the crew in charge of plaintiff in error's north-bound interstate freight train which started from Spencer at 9:45 P.M. August 29, 1912. Seeking damages for his death, the administratrix brought this suit under the Federal Employers' Liability Act (c. 149, 35 Stat. 65; c. 143, 36 Stat. 291) in the Superior Court, Randolph County, N.C. Among other things her amended complaint alleges:
"5. That on the 30th day of August, 1912, the intestate of the plaintiff was on a freight train running from Spencer in the State of North Carolina to Washington, D.C., through the State of Virginia, and when the freight train upon which the intestate of the plaintiff was operating in going north arrived at Dry Fork, in the State of Virginia, the intestate of the plaintiff was sent forward about three-quarters of a mile to signal a passenger train of defendant coming south; that the intestate of the plaintiff when he had gotten about three-quarters of a mile from Dry Fork for some reason -- loss of sleep or for some other
cause unknown to the plaintiff -- laid down by the side of the track of the defendant with his head on the end of the cross-ties and went to sleep; that shortly thereafter passenger train No. 37, coming south as aforesaid, carelessly and negligently ran over the intestate . . .
"7. That the death of the intestate of the plaintiff was caused without fault on his part and by the wrongful and negligent act of the defendant, in that both the engineer and the fireman upon the passenger train which killed the intestate of the plaintiff could have easily seen the intestate of the plaintiff lying in a helpless condition as aforesaid upon the track of the defendant, the track of the defendant being straight a sufficient distance upon which the said passenger train was running toward the intestate of the plaintiff to have stopped the train or slackened its speed sufficiently to have prevented the killing of the intestate of the plaintiff, ran their train onto the intestate of the plaintiff without ringing the bell, without blowing its whistle, without slackening its speed or without stopping the said train; in that the servants of the defendant did not keep proper lookout on the track in front of the engine and have the engine and train of the defendant in proper control so that they could stop the engine of the defendant in time to have prevented the wrongful killing of the intestate of the plaintiff; in that the servants of the defendant did not see the intestate of the plaintiff, which it was their duty to do and which they could have done by ordinary care until the train was so near the prostrate form of the intestate of the plaintiff that the servants of the defendant could not stop the train in time to save the life of the intestate of the plaintiff; in that the servants of the defendant wrongfully killed the intestate of the plaintiff upon the said occasion when they had the last clear chance to save his life, which they failed to do by the exercise of ordinary care."
The accident occurred at 5:14 A.M. -- twenty minutes before sunrise -- when it was somewhat foggy and ordinary objects on the ground could not readily be seen without artificial light. Approaching Dry Fork station the freight train stalled and having been divided into two sections these were hauled onto sidings there. After placing section one and as he returned by the main track to bring up section two, the freight engineer directed Gray to flag south-bound passenger train No. 37. It was the latter's duty, with a red and white lantern in hand, to go forward eighteen telegraph poles (half a mile) and lay a torpedo on the track; then to go nine poles further and place two torpedoes; then to return, stand near pole eighteen and await the expected train. No torpedo was put in place; but having advanced some three-quarters of a mile he set the lanterns on the track, lay down with his head on a crosstie and went to sleep. There is nothing to explain this action.
From Banister Hill two and one-fourth miles southward and almost to Dry Fork the track, following several curves, descends on a heavy grade. Commencing say three-fourths of a mile down this grade it runs in a straight line one-eighth mile; then around a sharp curve to the right, passing through a deep cut, to a point some six hundred feet from where the brakeman lay; then again in a straight line some four hundred feet; and thence around a moderate curve to the left perhaps a half mile.
On the west side of this last curve approximately 217 feet from its north end is that spot where Gray slept. Coming south along the track in broad daylight one can first see it when he reaches a point on the right-hand curve in the deep cut 1254 feet away.
Passenger train No. 37, properly equipped, 790 feet long, composed of ten cars -- six steel sleepers and four other cars -- a tender and engine, came down the long grade ...