[241 U.S. 333, 334] Messrs. L. E. Jeffries, H. O'B. Cooper, and L. L. Oliver for plaintiff in error.
Messrs. Thomas H. Calvert and John A. Barringer for defendant in error.
Mr. Justice McReynolds delivered the opinion of the court:
Kenneth L. Gray, an experienced brakeman, was of the crew in charge of plaintiff in error's north-bound interstate freight train which started from Spencer at 9:45 P. M. August 29, 1912. Seeking damages for his death, the administratrix brought this suit under the Federal employers' liability act (chap. 149, 35 Stat. at L. 65, Comp. Stat. 1913, 8657, chap. 143, 36 Stat. at L. 291) in the superior court, Randolph County, North Carolina. Among other things here amended complaint alleges:
... * *
From Banister Hill, 2 1/4 miles southward, and almost to Dry Fork, the track, following several curves, descends on a heavy grade. Commencing say 3/4 of a mile down this grade it runs in a straight line 1/8 mile; then around a sharp curve to the right, passing through a deep cut, to a point some 600 feet from where the brakeman lay; then again in a straight line some 400 feet; and thence around a moderate curve to the left perhaps a half mile.
On the west side of this last curve, approximately 217 feet from its north end, is the spot where Gray slept. Coming south along the track in broad daylight one can first see it when he reaches a point on the right- hand curve in the deep cut 1,254 feet away.
Passenger train No. 37, properly equipped, 790 feet long, composed of ten cars,-six steel sleepers and four other cars,-a tender and engine, came down the long grade running 55 miles an hour. The engineer says [241 U.S. 333, 337] that, approaching the right-hand curve, he blew a station signal; when he reached point in the cut where it first became possible to see the lights, he blew a flagman's signal; almost immediately thereafter, seeing the body, he put on brakes, turned off steam, and did everything possible to check the train; before this could be done, a low step struck the brakeman's head. Just before No. 37 blew for that station (it was not scheduled to stop there) the freight engine, standing at Dry Fork, signaled for Gray's return.
Three engineers testified that, in the circumstances, the pasenger train could not have been stopped in less than 1,900 feet, and no other evidence was offered on this point. There is nothing indicating that after the engineer saw or could have seen the brakeman's body the train could have been stopped before reaching it.
In an effort to discredit the passenger engineer, only witness to some circumstances, he was asked on cross-examination concerning prior contradictory statements; but the exclusion of all or any part of his evidence would not change the result. Of course, the contradictory statements can have no legal tendency to establish the truth of their subject-matter. Donaldson v. New York, N. H. & H. R. Co. 188 Mass. 484, 486, 74 N. E. 915; McDonald v. New York C. & H. R. R. Co. 186 Mass. 474, 72 N. E. 55; Com. v. Starkweather, 10 Cush. 59; Sloan v. New York C. R. Co. 45 N. Y. 125; Purdy v. People, 140 Ill. 46, 29 N. E. 700.
Following local practice, at close of all the evidence a motion was made to dismiss as of nonsuit, because negligence by the railroad had not been shown. The court denied this and submitted two issues to the jury,- 'whether the intestate of the plaintiff was killed by the negligence of the defendant, as alleged in the complaint,' and 'what damage, if any, is the plaintiff entitled to recover.' In connection with these a lengthy and rather involved charge was given, the objections to which it is not now necessary for us to consider. Judgment upon a [241 U.S. 333, 338] verdict for the administratrix was affirmed by the supreme court. 167 N. C. 433, 83 S. E. 849.
Plaintiff in error maintains that the trial court erred in overruling its motion to dismiss, and also relies upon objections to the charge. Counsel for defendant in error claim all instructions were correct, and insist that the verdict is adequately supported by evidence. Concerning the latter they say:
As the action is under the Federal employers' liability [241 U.S. 333, 339] act, rights and obligations depend upon it, and applicable principles of common law as interpreted and applied in Federal courts. Seaboard Air Line R. Co. v. Horton, 233 U.S. 492 , 58 L. ed. 1062, L.R.A.1915C, 1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834; Central Vermont R. Co. v. White, 238 U.S. 507 , 59 L. ed. 1433, 35 Sup. Ct. Rep. 865, 9 N. C. C. A. 265; Great Northern R. Co. v. Wiles, 240 U.S. 444 , 60 L. ed. --, 36 Sup. Ct. Rep. 406.
Negligence by the railway company is essential to a recovery; and there is not a scintilla of evidence to show this under the most favorable view of the testimony urged by counsel for defendant in error. When it first became possible for the engineer to see signal lights 1,254 feet away he had a right to suppose the brakeman was standing there on guard. Immediately, he says, the customary signal was sounded. No duty to the brakeman demanded an instant effort to stop the train,-the indicated danger was more than half a mile away. Moreover, application of emergency apparatus on that moment, it appears, would not have caused a stop in time to prevent the accident. There is no evidence that the engineer could have seen the brakeman a single moment before he did, or omitted thereafter to do all within his power.
We think the motion to dismiss should have been granted. The judgment below is accordingly reversed and the cause remanded to the Supreme Court of North Carolina for further proceedings not inconsistent with this opinion.