Buckner v. South & W. R. Co.

• Citation: 73 S.E. 137,157 N.C. 443
• Parties: BUCKNER v. SOUTH & W. R. CO. et al.
• Decision Date: 20 December 1911
• Court: United States State Supreme Court of North Carolina

73 S.E. 137

157 N.C. 443

BUCKNER v. SOUTH & W. R. CO. et al.

Supreme Court of North Carolina

December 20, 1911

Appeal from Superior Court, Buncombe County; Lane, Judge.

Action by Charles Bucknet against the South & Western Railroad Company and others. From a judgment of nonsuit, plaintiff appeals. Reversed, and new trial granted.

Whether servant injuring another acted within scope of employment is generally for jury.

Tucker & Lee and W. T. Morgan, for appellant.

Locke Craig, A. Hall Johnston, and J. Norment Powell, for appellees.

BROWN J.

This appeal is in forma pauperis and comprises 134 typewritten pages, of which 110 pages comprise the evidence in chief cross-examinations, and re-examinations as taken down by the stenographer in the form of question and answer. The defendant offered no evidence, and the witnesses for plaintiff were few in number. At the end of the stenographer's notes is this entry: "It is agreed that the record proper and stenographer's notes shall constitute case on appeal." There is no other attempt to make out a case on appeal as required by law. This is in direct violation of the rule of this court, No. 22 (66 S.E. vii), and of its express decision in Cressler v. City of Asheville, 138 N.C. 483, 51 S.E. 53. That such of the evidence as is necessary to present the assignments of error could easily have been stated in condensed narrative form is manifested by the fact that the counsel for plaintiff and defendants have set out in their respective briefs very clear and brief statements of the evidence, which substantially agree. Under the circumstances of this case, we will make an exception and not dismiss the appeal; but we will be compelled to do so in the future unless our rule is observed.

We have been saved the great labor of a close perusal of this bulky transcript by adopting practically the facts as stated in defendant's brief, as follows: "In February, 1906 the defendants, Carolina Company and South & Western Railway Company (no question being made in this case as to their relation to each other or to the work), were engaged in grading and constructing a line of railway through McDowell county, employing several thousand men at different camps. During that month plaintiff, then at Spartanburg, S. C., was employed by one Redricks to work on said road. In company with others, he went from Spartanburg via Asheville, to Marion, walked nine or ten miles from Marion to Camp 9, where he was told Capt Harris (who the evidence shows was superintendent at Camps 8 and 9) that he was not needed at Camp 9 and directed to go to Camp 8. Plaintiff thereupon walked to Camp 8, three miles distant, reached there late in the day, had his name given to the walking boss there, was employed at Camp 8, made arrangements to go to work there, and the next morning went to work and worked half a day and then, in company with Wheeler and Wyatt, two of the men who had come with him started home carrying his baggage. When about half way on the road to Camp 9, they were met by two men, one of whom they identify as Capt. Harris. Harris drew a pistol on Wheeler, and the other man drew a pistol on plaintiff and Wyatt, and all were commanded to throw up their hands, which they did. Harris then asked where they were going and, upon being informed that they were going home, told them to go back to Camp 8, which they refused to do. Thereupon Harris asked their reason, and they answered that it had been misrepresented to them. Harris then said that Redricks was at Camp 9 and they would go down and see whether he misrepresented things or not. Harris and the other man rode behind them, Harris cursing them all the way, with his pistol drawn, and upon their arrival at Camp 9 Harris called to a man, "Sheriff, here are some more hoboes," and directed the man whom he called Sheriff to put them in one of the overseer's houses that had a sufficient lock on it. The evidence shows that the man addressed as "Sheriff" was Geo. Carson, and that he was a walking boss or camp superintendent of one of the defendants at Camp 9, with authority to employ and discharge men at that camp. This man thereupon told plaintiff and his two companions to consider themselves under arrest, searched them, took their money, valuables, and baggage, and drove them before him with drawn pistol to a room where he locked them up. Some time that night, plaintiff was called to the door by this man, who drew a...