Baker v. Atlantic Coast Line R. Co.

61 S.E.2d 621 (1950)

232 N.C. 523

BAKER v. ATLANTIC COAST LINE R. CO.

No. 235.

Supreme Court of North Carolina.

November 1, 1950.

*624 C. G. Grady, Four Oaks, Levinson & Batton, Smithfield, for plaintiff appellant.

Abell, Shepard & Wood, Smithfield, Frank G. Kurka, M. V. Barnhill, Jr., Wilmington, for defendant appellee.

WINBORNE, Justice.

This appeal challenges only the judgment as of nonsuit entered in the trial court. As to this, the evidence shown in the case on appeal taken in the light most favorable to plaintiff, as is done in such case, fails to make out a case of actionable negligence,indeed fails to show any negligence on the part of defendant. Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326, and cases there cited.

In an action for the recovery of damages for injuries allegedly resulting from actionable negligence, "the plaintiff must show: First, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff, under the circumstances in which they were placed; and, second, that such negligent breach of duty was the proximate cause of the injurya cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under all the facts as they existed." Whitt v. Rand, 187 N.C. 805, 123 S.E. 84, 85; Evans v. Shea Bros. Construction Co., 194 N.C. 31, 138 S.E. 411; Hurt v. Western Carolina Power Co., 194 N.C. 696, 140 S.E. 730; Thompson v. North Carolina R. Co., 195 N.C. 663, 143 S.E. 186; Templeton v. Kelley, 215 N.C. 577, 2 S.E.2d 696; Gold v. Kiker, 216 N.C. 511, 5 S.E.2d 548; Murray v. Atlantic Coast Line R. Co., supra, and numerous other cases.

The principle prevails in this State that what is negligence is a question of law, and, when the facts are admitted or established, the court must say whether it does *625 or does not exist. This rule extends and applies not only to the question of the negligent breach of duty, but also to the feature of proximate cause. Hicks v. Naomi Falls Mfg. Co., 138 N.C. 319, 50 S.E. 703; Russell v. Carolina Cent. R. Co., 118 N.C. 1098, 24 S.E. 512; Lineberry v. North Carolina R. Co., 187 N.C. 786, 123 S.E. 1.

In the case in hand the relationship between the defendant and the plaintiff's intestate is that of master and servant, or employer and employee. When such relationship exists, the accepted and well settled rule of law is that the master owes to the servant the duty to exercise ordinary care to provide a reasonably safe place in which to do his work and reasonably safe machinery, implements and appliances with which to work. The master is not an insurer, however. Nor is it the absolute duty of the master to provide a reasonably safe place for the servant to work, or to furnish reasonably safe machinery, implements and appliances with which to work. He meets the requirements of the law in the discharge of his duty if he exercises or uses ordinary care to provide for the servant such a place, or to furnish such machinery, implements and appliances as are approved and in general use in places of like kind, that is, that degree of care which a man of ordinary prudence would exercise or use under like circumstances, having regard to his own safety, if he were providing for himself a place to work, or if he were furnishing for himself machinery, implements and appliances with which to work. This rule of conduct of "the ordinarily prudent man" measures accurately the duty of the master and fixes the limit of his responsibility to his servant. Murray v. Atlantic Coast Line R. Co., supra, and cases there cited. See also Helms v. South Atlantic Waste Co., 151 N.C. 370, 66 S.E. 312; Eplee v. Southern Ry. Co., 155 N.C. 293, 71 S.E. 325.

In the light of these principles, while plaintiff alleges as an act of negligence on the part of defendant a failure to equip the motor car with a hand-hold, the evidence offered by plaintiff is that the motor car in question was equipped with standard hand-holds, and that it was in general use by the defendant. And there is neither allegation nor proof that the motor car, so equipped, was not approved and in general use. See Grubbs v. Lewis, 196 N.C. 391, 145 S.E. 769.

And while plaintiff also alleges as an act of negligence the equipment of the motor car with a canvas windshield containing a small plexiglass opening which was covered with dust, dirt and other foreign substances so as to prevent plaintiff's intestate and the operator of the motor car having a clear vision ahead,the evidence offered by plaintiff is that the windshield was of solid canvas, but that the operator could see over it around 20 feet in front, and by raising up "a little bit" could see right in front of the car,and that plaintiff's intestate "sitting up side of the windshield", "in a normal * * * and the usual position" "could look over this canvas * * * easily * * * and see anything on the track".

Now we come to the last acts of negligence alleged by plaintiff, the failure of the operator of the motor car to keep lookout ahead for obstructions in its pathway, and to take reasonable precaution for its safe operation when he saw, or by the exercise of ordinary care should have seen, a large dog, either upon or approaching the railroad track.

In reference thereto, this Court has dealt with the subject of a street railway company's liability in tort for the killing of a dog. Moore v. Charlotte Electric Ry., Light & Power Co., 136 N.C. 554, 48 S.E. 822.

In the Moore case the Court laid down these principles: The dog is not included in the category of cattle or livestock, but is a species or subject of property recognized as such by the law, and for an injury to which an action at law may be sustained. But no presumption of negligence on the part of the railway arises from the mere fact of killing of, or injury to a dog by a train being shown. On the other hand, on account of the superior intelligence and traits of character of the dog, an engineer in charge of a moving locomotive is not compelled to keep either as vigilant lookout *626 for the dog, or as great care in the management of his engine or train so as to prevent their injury as he is for cattle or livestock, and is warranted in acting on the belief that a dog on the track apparently in possession of his faculties will avoid danger; that is, the engineer has the right to assume, and to act upon the assumption, that the dog will leave the track, and escape the impending peril of the oncoming train. There is, however, an exception to the principle, that is, when the dog on the track is apparently helpless, or totally oblivious of his surroundings.

Applying these principles to the case in hand, the operator of the motor car was not charged with the duty of anticipating the presence of a dog upon the track; but in the absence of a showing that the dog upon the track was apparently helpless, or totally oblivious of his surroundings, the operator had the right to assume, and to act upon the assumption, even to the moment of impact, that the dog would leave the track. Hence, the failure to stop the motor car would not be an act of negligence. Therefore, since there is no evidence tending to show how long the dog had been on the track, or what he was doing, or what his condition was, there is a failure of proof of negligence on the part of the operator of the motor car. Compare Cummings v. Atlantic Coast Line R. Co., 217 N.C. 127, 6 S.E.2d 837; Justice v. Southern R. Co., 219 N.C. 273, 13 S.E.2d 553; Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406. And the evidence is that the impact between the motor car and the dog was the cause of the derailment of the motor car and the resultant death of plaintiff's intestate.

Appellant states in her brief that this action is brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The complaint fails to so expressly declare. But even so, the basis of liability under this act is negligence proximately producing injury. Plaintiff must show something more than a fortuitous injury. Camp v. Southern Ry. Co., N.C., 61 S.E.2d 358, citing Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S. Ct. 444, 87 L. Ed. 610, 143 A.L.R. 967; Brady v. Southern Ry. Co., 222 N.C. 367, 23 S.E.2d 334, Id., 320 U.S. 476, 64 S. Ct. 232, 88 L. Ed. 239; Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S. Ct. 598, 91 L. Ed. 572.

For reasons stated, the judgment as of nonsuit is

Affirmed.