
    H. A. KESTERSON v. SOUTHERN RAILWAY COMPANY.
    (Filed 11 December, 1907).
    1. Pleadings — Plea in Abatement- — Former Action.
    An action of a similar nature wbieli is pending, but bas not proceeded to judgment in a Federal court, cannot be pleaded in abatement of a like action in tbe State courts. Tbe plea must aver, and tbe proof affirmatively show, that tbe former action is still pending at tbe time of tbe filing of the plea.
    2. Negligence — Contributory Negligence — Joint Tort Feasors — Custom — Implied Duty.
    Tbe plaintiff was employed by C. to help in loading cars with coal furnished by tbe defendant railroad company. It was the custom of tbe defendant to back the empty cars up grade, several at the time, so that by means of brakes tbe cars would remain as placed until ready for loading, when, by loosing tbe brakes, one car at tbe time would go down "the grade to tbe point where tbe coal would be let into it from above. Tbe custom was for others than tbe plaintiff to set tbe brakes on each ear, of which tbe plaintiff' knew and upon which be relied at tbe time of the accident, and, unknown to plaintiff, only tbe front car bad tbe brakes on it, and, in consequence, when that was released tbe others followed and ran into it, causing tbe injury complained of: Held, (1) while no contractual relationship existed between tbe plaintiff and defendant railroad company, tbe joint business relationship established by known custom between it and C. was such as imposed a duty upon the defendant, making it liable to the plaintiff for its negligence; (2) there was no evidence of contributory negligence.
    ActioN to recover damages for personal injury, tried before Gooke, J., and a jury, at March Term, 1907, of the Superior Court of BuNcombe County.
    The court submitted the usual issues of negligence, contributory negligence, and damages. The jury found for plaintiff on all issues. Erom the judgment rendered the defendant appealed.
    
      George A. SJmford, Frank Garter and H. G.. Chedesber for plaintiff.
    
      Moore & Rollins for defendant.
   BeowN, J.

1. Tbe defendant set np in its answer tbe pendency of an action between tbe plaintiff and defendant for tbe same canse of action set np in tbe plaintiff’s complaint in tbis action, wbicb action was begun, before tbis action was commenced, in tbe Superior Court of Buncombe County, and was tbence removed to tbe Circuit Court of tbe United States.

It is found as a fact tbat, at tbe time of tbe issuing of tbe summons in tbis action, tbe other action was pending in tbe Circuit Court of tbe United States, but tbat a judgment of nonsuit bad been entered therein before tbe complaint in tbis action bad been filed. The plea in abatement to tbis suit was properly overruled upon tbe facts.

Tbe pendency of a suit, in personam, in a State court, wbicb has not proceeded to judgment, cannot be successfully pleaded in abatement of a suit between tbe same parties for the same cause of action in a Federal court.

So, too, and for like reasons, an action of a similar nature wbicb is pending, but has. not proceeded to judgment, in a Federal court, cannot be pleaded in abatement of a like suit in a State court. Tbe point is decided in Sloan v. McDowell, 75 N. C., 29, where tbe reasons are given by Mr. Justice Peade for tbe distinction in tbis respect between suits for tbe same cause and between tbe same parties, pending in tbe courts of tbe same State, and where tbe causes are pending in courts of different sovereigns or jurisdictions. For tbis reason the case of Curtis v. Piedmont, 109 N. C., 401, is not in point. There, tbe former action was pending in the same court.

Had tbe action in tbe Circuit Court of tbe United States been prosecuted to judgment, it would have, upon proper plea, barred further prosecution in tbe State courts. Gordon v. Gilfoil, 99 U. S., 168; 1 Cyc., 38; North Muskequo v. Clark, 62 Fed., 494. Tbe plea in abatement must also aver, and tbe proof affirmatively show, tbat tbe former action is still pending at tbe time of tbe filing of tbe plea. 1 Encyc. Pl. and Practice, 754; Phelps v. Railroad, 5 Am. State, 867.

Tbe effective part of tbe plea is that tbe former action is still pending. Here, tbe jury find that a nonsuit was entered in tbe former action before tbe filing of tbe complaint and, therefore, necessarily, before tbe filing of tbe plea.

2. Tbe only question remaining for consideration is tbe exception to tbe ruling of tbe court denying tbe defendant’s motion to nonsuit.

Tbe plaintiff’s evidence tended to prove that one Collins was engaged in quarrying rock, and, to facilitate operations and tbe handling of tbe output, tbe defendant constructed a side track alongside tbe quarry. Collins bad control of tbe loading of cars. These cars, as required by Collins for tbe purposes of bis business, were placed upon bis side track, by tbe defendant. The side track was built upon a heavy grade, estimated at three and one-balf to five feet in one hundred, and on defendant’s right of way. Tbe bins, or hoppers, from which the crushed stone was discharged into tbe cars were built directly over said side track, at tbe bottom of said grade. Tbe elevation of said bins, or hoppers, was such as to allow tbe passage underneath of tbe defendant’s gondola cars, with a space of twelve or fourteen inches between tbe bottom of tbe bin and tbe top of tbe car. Tbe evidence tends further to prove that it was customary for tbe defendant to place empty cars upon this side track in tbe morning and to secure them so that they would stand upon tbe incline, and Collins’ employees would let them down by gravity, one at a time, as needed for tbe purpose of being loaded, regulating and controlling their movements and stopping them at tbe proper place by tbe use of tbe band-brakes on said cars, .and tbe defendant’s freight trains would take out tbe loaded cars tbe following night or morning. Tbe empty cars would stand upon tbe grade if tbe brakes were set on each, but for greater security it was customary to block or scotch tbe front car with a piece of wood, and, when this car was moved, to scotch the next car, and so on.

Collins’ employees had nothing to do with placing the empty cars on the quarry siding. In the language of the witness Allred, “It was customary for them (the railroad people) to put them in there and hold them.”

At the time of the injury the plaintiff was in the employ of Collins, working in said quarry. Upon the occasion in question he was required by his employer to assist in letting down the empty cars for the purpose of being loaded. He loosed the brakes and brought down the front car to the bin and, as he passed under it, the remaining cars, which had been left by defendant on the side track, as usual, not having brakes on, or not being checked, rushed down on the front car and knocked plaintiff off and seriously injured him. They had been held in place by the front car, and when the brakes on it were released and the car moved forward, the others, the brakes not being on, smashed into the front car when plaintiff stopped it under the bin.

It is true that the plaintiff was the servant of Collins and not of defendant, and that there were no contractual relations existing between the plaintiff and the defendant company. Yet there was that connection between Collins and the defendant in respect to' the operations of the quarry which gave the employees of Collins the right to rely upon the established usage of fastening all the cars by brakes being carefully observed by defendant. The testimony of plaintiff’s witnesses tends strongly to prove that when defendant’s agents delivered the cars on the greatly inclined siding they always set the brakes on each car, and that on this occasion they set the brakes on the front car only, and did not check or set the brakes on the others.

This custom was known to plaintiff, and that he relied on it when he moved the front car is evident from his own testimony, for he says he “would not for the world have taken that car out” bad be known those behind it bad been left with brakes off.

There is a class of cases in which one has been held liable to another in the absence of any contractual or other relation between them. This belongs to that class. The act of negligence in leaving the cars with brakes off, or not checked, under such circumstances and conditions, in violation of defendant’s custom and usage, known to plaintiff and the other employees of Collins, was highly dangerous to them, and renders the defendant liable for the injury sustained in consequence. Roddy v. Railway Co., 21 Am. State, 333; Thomas v. Winchester, 6 N. Y., 397; 2 Sutherland on Damages, 435.

While no contractual relation existed between plaintiff and defendant, yet Collins and the defendant had such business relations that each owed the duty to the other and his employees of properly discharging his part of the joint undertaking in respect to any matter exclusively devolving upon him.

Plaintiff had nothing to do with checking or fastening the cars properly with brakes when they were delivered on the side track. That was a part of defendant’s obligation, and in its discharge a certain usage had been established. Without plaintiff’s knowledge, this usage was not observed on one occasion, resulting in injury to him.

The defendant is, therefore, liable for the consequent result. In respect to defendant’s contention in regard to contributory negligence, we think his Honor might well have charged that there was no evidence of that.

No Error.  