Allen v. Atl. Coast Line R. Co

• Decision Date: 16 October 1907
• Citation: 145 N. C. 214,58 S.E. 1081
• Court: North Carolina Supreme Court
• Parties: ALLEN v. ATLANTIC COAST LINE R. CO.

58 S.E. 1081

(145 N. C. 214)

ALLEN

v.ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina.

Oct. 16, 1907.

1. Master and Servant—Action by Servant for Injury—Sufficiency of Evidence —"Last Clear Chance."

In an action by a servant, a brakeman, for personal injuries, evidence considered, and held not to warrant the submission of the issue of "last clear chance."

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1131, 1132.]

2. Same — Method of Work — "Flying Switch" as Negligence Per Se.

Making a flying switch is not negligence per se as to the employe performing it. It is the attempt to make a running switch when the detached car has no brakeman on it, and is under no control, that is declared to be negligence, because highly dangerous.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 756.]

3. Same — Contributory Negligence or Servant.

In an action by a servant, a brakeman, against a railroad company for personal injuries, evidence as to contributory negligence considered, and held sufficient to go to the jury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1089-1132.]

Appeal from Superior Court, Lenoir County; E. B. Jones, Judge.

Action by William Allen against the Atlantic Coast Line Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

The court submitted the following issues: "(1) Was the plaintiff, William Allen, injured by the negligence of the defendant? (2) Did the plaintiff, William Allen, contribute to his injury by his own negligence? (3) What amount, If any, has plaintiff been damaged?" The jury answered first Issue, "Yes, " and second Issue, "Yes." From the judgmeut that the defendant go without day, the plaintiff appeals.

Loftin & Varser, G. V. Cowper, and M. H. Allen, for appellant

Rouse & Land, for appellee.

BROWN, J. Upon the trial the plaintiff tendered the issues submitted, and also another issue, as follows: "If the plaintiff contributed to his own injury, could the defendant have avoided the injury by due care?" The refusal of the court to submit this issue is strongly pressed by plaintiff as error. The contention of a plaintiff that, although he may be guilty of negligence, yet the defendant had the last opportunity to prevent injury, can be presented under the issue of contributory negligence, as negligence to bar recovery must be shown to be the proximate cause. Baker v; Railroad, 118 N. C. 1021, 24 S. E. 415; Ramsbottom v. Railroad, 138 N. C. 38, 50 S. E. 448. We find nothing in this case which warrants the application of the so-called doctrine of the "last clear chance." The only person who it is claimed could have intervened and saved the plaintiff from injury was the brakeman, Outlaw; and we see nothing in the evidence to sustain the contention that he could have done it. It appears by plaintiff's own testimony that he had been employed on a freight train of defendant and was an experienced brakeman; that he was ordered by the conductor to go help Ellas Outlaw place some shanty cars on the siding; that, instead of going to the side of the shanty cars where the ladders were, he let the shanties pass, and jumped on a coal car, which was the first car after the shanties passed. In respect to this contention, the plaintiff's evidence is as follows: "As soon as I caught the coal car, which was the first car that reached me after the shanties passed, I got upon the platform of the coal car and at once started to step from it to a ladder on the shanty car, which I was" going to place on the said track. Just as I was stepping to this ladder on the shanty car, the switchman cut off the cars, and dropped me from the center of the track down to the ground." This testimony makes the acts of plaintiff and the switchman, Outlaw, practically simultaneous. Upon the plaintiff's statement, then, there was no intervening time between his step and the act of Outlaw in disconnecting the cars to have enabled any agency to have been brought to bear upon the occurrence which could have averted the injury. Therefore there is no possible deduction in the testimony which...