Bryant v. Atlantic Coast Line Railroad

Winborne, C. J.:

In the light of contentions set fourth in joint brief of appellants, plaintiff and defendant Atlantic Coast Line Railroad Company, the determinative question raised on this appeal seems to be whether this Court should now reverse its decision rendered in 1944 in the case of Wilson v. Massagee, 224 N.C. 705, 32 S.E. 2d 335. As to this, it is interesting to note that at that time and in that case another railroad was taking opposite position to that now taken in present case. But be that as it may, while we have here a personal injury action, and there a wrongful death case, — and while here plaintiff, having brought his action under Federal Employers’ Liability Act against the defendant Railroad Company, and now seeks in same action to recover of White Construction Company under common law, the principle applied in Wilson v. Massagee, supra, is the same, and this Court adheres to its decision there.

In that case, supra, this Court said: “ * * * as against the original defendant, the right of plaintiff to sue for the alleged wrongful death of her intestate arose only by virtue of the statute, G.S. 28-173 * * * The right of action given under this statute, G.S. 28-173, did not exist at common law, and rests entirely on the statute * * *

“On the other hand, as against the Southern Railway Company the right of plaintiff to sue for the alleged wrongful death of her intestate, who at the time of his injury and death was employed in the interstate operations of the Railway Company, arose exclusively under and by virtue of the Federal Employers’ Liability Act, 45 USCA, sections 51-59 * * *

“While before this Federal Employers’ Liability Act was passed by Congress, the liability of common carriers by railroad engaged in interstate commerce for injuries to, or death of their employees while engaged in such commerce was governed by the laws of the several states, the Act took possession of the field of liability in such cases and superseded all State laws upon the subject (citing cases).

“Thus the right of plaintiff to sue the original defendants for damages for the death of her intestate arose upon an entirely separate and distinct statute from that under which her right to sue the railway company arose. The plaintiff has no right, under the Federal Employers’ Liability Act, to sue and maintain an action against the original defendants. Nor does she have any right, under the State statute giving right of action for wrongful death, to sue and maintain an action against the railway company. Hence, plaintiff did not have a common legal right of action against the original defendants and the railway company.”

It is noted that the court reserved to defendant Railroad Company rights under its alleged agreement with White Construction Company “so far as future proceedings may be concerned.”

For reasons stated the judgment from which appeal is taken is

Affirmed.