Sigmon v. Southern Railway Co. , 186 N.C. 519 ( 1923 )

Olaek;, C. J.

This case is important, but the controversy lies within a very small compass. There can be no question that the intestate, the engineer, contributed to his death by his negligence in failing to obey' the “meet order,” which required him to wait at Yadkin junction for the arrival of the freight train coming from Norwood on the Yadkin Railroad. The jury have so found, and there is no question as to the correctness of the verdict, but it was also the duty of the conductor and flagman, when they found that the engineer had gone contrary to orders, to have signaled the train to stop. In this case the flagman testifies that he “forgot it,” and the conductor, when asked why he did not give the signal to the engineer to stop, said that he “did not know why he did not.” There was no telegraph office or telephone station at the junction, which is about one mile west of the station of the Southern Railway at Salisbury. It is in evidence that, while there was no contract in writing between the Southern and the Yadkin railways, the two roads were operated by the joint employees of the two companies.

From the time the train left the station at Salisbury until the collision occurred, a mile south of the Yadkin junction, the conductor did not give any signal. There were not the required two signals and a short signal to the engineer to stop at the junction. The conductor saw the flagman pull the two signals for the engineer to go ahead. He knew that the signals meant for the engineer to pull his train ahead and go upon the Yadkin track, but he went on taking up His tickets. The next, thing the conductor knew was the collision. The train was worked by signals, and the purpose of the cord was to signal the engineer when to start and stop his engine.

The conductor was asked the following question: “When the flagman pulled that cord and started that man on, why did you not pull the cord and stop him?” and he answered, “I don’t know why I did not do it.”

Without elaborating the evidence, it is sufficient to say that it justified the verdict of the jury that the collision was caused by the negligence of the officers, agents and employees of the defendants. While the intestate was guilty of contributory negligence, there was ample evidence that the collision would not have occurred but for negligence on the part of the conductor and of the flagman.

Under the Federal Employers’ Liability Act the jury was empowered to apportion the recovery according to the ratio which they found should exist between the causal effect of the contributory negligence of the engineer and that of the defendants in the conduct of the conductor and flagman.

In the verdict and judgment we find

No error.