Davis v. Carolina Cotton & Woolen Mills Co. ( 1925 )

ROSE, Circuit Judge.

The parties occupied' before us the same relative positions as they did below; that is to say, the Director General of Railroads, the plaintiff in error in this court, was plaintiff below, and the Carolina Cotton & Woolen Mills Company, was defendant in the District Court, and is defendant in error here. It will tend to readier apprehension of the facts if the parties be referred to as the railroad and as the mill, respectively:

The controversy had its origin in something which happened in Spray, N. C., on St. Valentine’s Day in the year T919.' At that time ánd place a high wind was blowing. There was nothing extraordinary about its force or its velocity. It was what might have been expected at that season. It, however, blew down a badly rusted smokestack on one of the buildings belonging to the mill and used by it. In falling, the stack brought down from position a number of wires which crossed the tracks of the railroad. Among them was one or more belonging to the Western Union Telegraph Company. At that place, the railroad apparently ran through something of a cut. A man named Odell picked up a fallen wire, got up on a cinder pile, and reached up as high as he could, and made it fast to a pole standing on the bank above the tracks. In the position in which he placed it, it was elevated enough to allow a locomotive and ears to pass under it, but it was not sufficiently high to clear the head of a man who was standing on top of a car. While it was in this position, a freight train passed under the wire, and one of the train crew named Smith was swept off a ear by the wire and was seriously injured. He brought suit in the United States District Court for the Western District of North Carolina against, not only the then Director General of Railroads, but the railroad as a corporate entity, the Western Union Telegraph Company, and the mill. When' the case was called for trial, Smith submitted to a nonsuit so far as concerned the V(estern Union Telegraph Company, the mill, and the railroad, as distinguished' from the Director General.

The plaintiff in the instant ease unavailingly objected to the abandonment, of the suit against the mill, having already notified the latter that he expected it to indemnify and- reimburse him for all sums that he might be required to pay Smith as damages and as costs and expenses. The trial proceeded against the present plaintiff, whom we will again refer to as the railroad, and against no one else. It resulted in a judgment against him for $12,000, on the ground that the railroad knew or should have known of the dangerous position of the wire, and should have warned Smith of it. ■ He subsequently settled with Smith for $10,000 and $258.84 costs, these sums aggregating $10,-258.84, and for the additional sum of $224.-78, paid by the railroad as costs and expenses incident to the trial, making a grand total of $10,483.62, for which the present suit was brought.

At the close of the testimony, the court, at the motion of the mill, directed a compulsory nonsuit, and the railroad sued out this writ of error. We may put aside at the start any question of the mill’s liability in consequence of the condition of the smokestack which fell. Such fall was not the proximate cause of the harm done Smith. He would not have been'hurt, had it not been for the subsequent action of Odell in lifting the wire from the track and making it fast in a position in which it was highly dangerous to any one on top of a freight car passing under it.

Many questions have been discussed in the case, some of them- of great interest and nicety, but it will be clearly unnecessary to consider any of them unless the railroad has sustained the burden resting on it to present evidence from which the jury would have been justified in finding that the mill was answerable for what Odell did. It is admitted he was not one of its regular employees. He testified that on that day he was working for Mr. Chatham, moving coal from one of the mill buildings to another, and that what he did with the wire was done under Mr. Chatham’s direction. That was all the evidence offered by the railroad on the subject of Ms relationsMp to the mill. The latter on its behalf proved that Chatham was an employee of the Spray Civic Association, an incorporated body made up of the different companies and mills located at Spray. His brother was the general manager of the outside work of the association. There was at the time a shortage of labor, and his brother told the witness to take a gang of men and help out the mill, by moving coal from one of its buildings to another. Odell was one of these men, and had, prior to raising the wire, been engaged for four hours or more in handling the mill’s coal. The witness and the men under him were paid by the Spray Civic Association. That is all there is in the record on the subject. It is obviously insufficient to make the mill answerable for what Odell or Chatham did. If they were at the time in the employ of the mill, it was merely for the purpose of moving coal, and that they were called upon to handle the wire by it or by any one authorized to speak for it, is not shown.

The learned court below was, we tMnk, right in holding that the plaintiff had not made out its ease.

Affirmed.