Kimbrough v. . R. R. ( 1921 )

WALKER, J., dissenting in part. This was an action for personal injuries sustained at a grade crossing in Selma, N.C. on 27 January, 1919, by the alleged negligence of the defendants. From verdict and judgment the defendants appealed. This case was before us at Fall Term, 1920, Kimbrough v. Hines,180 N.C. 274, and a new trial was granted in an opinion by Walker, J. It appears from the transcript in this case that the trial judge has substantially observed the directions in every respect laid down in that opinion, and therefore we do not deem that it is necessary to repeat the law applicable to the facts, which are identical with those presented on the former appeal.

This action was brought against Walker D. Hines, Director General, and the Atlantic Coast Line Railroad Company. The judgment is against each of the defendants. Since this case was tried the U.S. Supreme Court, in the opinion in R. R. v. Ault, filed 1 July, 1921, have held that where such actions as this have been brought against the Director General, joining as a party the railroad company, which was being operated under General Orders No. 50, that the action cannot be sustained as against the railroad company. The (236) plaintiff in this case now submits that a modification of the judgment should be ordered reversing the judgment, and dismissing the action as to the Atlantic Coast Line Railroad Company.

The issues in this case affecting the liability of the Director General and the railroad company were separate and distinct, and had the trial judge stricken out all allegations in the complaint and the issues, relating to the railroad company, there would have remained a perfectly alleged cause of action against the Director General. The nature of the evidence would in no respect have been changed, and the verdict of the jury would have been the same. The Director General has no ground to insist that the judgment against the railroad company should not be reversed and the action dismissed as to said company.

C.S. 658, reads thus: "Upon an appeal from the judgment or order, the appellate court may reverse, affirm, or modify the judgment or order appealed from in the respect mentioned in the notice of appeal and as to any or all other parties, and may, if necessary or proper, order a new trial."

C.S. 1412, provides in part as follows: "In every case the Court can render such sentence, judgment, and decree as on inspection of the whole record it shall appear to them ought in law to be rendered thereon." Under the technical rules of the common law a different rule prevailed, but the court of equity always followed this procedure, which was adopted by this State when the distinction between law and equity was abolished. One court having taken place of both law and equity, a joint judgment may be affirmed as to one defendant, and dismissed as to another. This has been the uniform course and practice since the blending of the two forms of procedure, and is expressly authorized by our statutes, above quoted. Newberry v. R. R.,160 N.C. 156; Hollingsworth v. Skelding, 142 N.C. 246; Long v. Swindell, 77 N.C. 185. The same practice has been followed in the courts of the other states which have adopted the modern system of practice.

Every objection which could be presented by the Director General is presented before us by this record as fully as it would be if the judgment as to the Atlantic Coast Line Railroad Company were not dismissed in pursuance of the decisions of the U.S. Supreme Court in R. R. v. Ault,supra, and the appeal as to the Director General has been in nowise prejudiced by the reversal of the judgment and the dismissal of the action as against the railroad company. Indeed, in Ault's case the Court recognized this course, for while reversing the judgment as to the railroad company as an unnecessary and improper party, it proceeded to review and discuss the appeal as to the Director General on the merits and reversed that appeal on an entirely different ground.

The judgment against the Atlantic Coast Line Railroad Company is reversed and set aside and the action as regards (237) that company is dismissed. In the appeal by the Director General we find

No error.