Crutchfield v. The Richmond & Danville R.R. Co.

• Decision Date: 31 January 1877
• Citation: 76 N.C. 320
• Parties: PAUL W. CRUTCHFIELD v. THE RICHMOND & DANVILLE RAILROAD COMPANY.
• Court: North Carolina Supreme Court

76 N.C. 320

PAUL W. CRUTCHFIELD

v.THE RICHMOND & DANVILLE RAILROAD COMPANY.

Supreme Court of North Carolina.

January Term, 1877.

CIVIL ACTION, tried at Fall Term, 1876, of FORSYTHE Superior Court before Kerr, J.

The plaintiff was a brakesman on that portion of defendant's road known as the North Western N. C. Rail Road, and while in the discharge of his duty as such was badly and permanently crippled by a defective engine and road bed of defendant company. This action was brought to recover damages for the injuries so received.

The evidence was that the engine was defective and one witness testified “that while engaged on the road as fireman he had seen the engine “walk off when no one was about it, and when the steam was shut off;' that the road bed was in bad order at the place where the accident happened and that while plaintiff was engaged in coupling cars the train made a sudden rush backward, cutting and crushing the elbow of plaintiff.”

The defendant insisted that plaintiff contributed to this injury by his own negligence and introduced Jacob Hicks who testified “that he was engineer on the train when plaintiff was injured, that the engine attached to the train was a good one, and that he could control it and did control it prior to and at the time of the injury to plaintiff.”

Dr. Bahnsen, who had previously been examined as an expert, as to the extent, &c. of the injuries received by plaintiff, was recalled and testified in substance, that the night after the accident, he was returning from attendance on plaintiff and passed the depot in Greensboro, where he met the witness Hicks. He inquired of Hicks the cause of the injury. Hicks replied “that the engine was old and worn out, and that he could not stop it within several feet of the place he wanted to and at the time of the accident he felt the engine jerk backward.”

There was other conflicting testimony, the statement of which is not necessary to an understanding of the opinion. His Honor submitted issues to the jury who found as follows;

1. The injury to plaintiff was caused by the negligence of defendant.

2. Plaintiff was not guilty of contributory negligence.

3. The injury was not caused by the negligence of any employee of defendant.

4. That plaintiff is entitled to $4.000 damages, Verdict for plaintiff. Judgment. Appeal by defendant.

Messrs. T. J. Wilson and Watson & Glenn, for @## @plaintiff, cited State v. Davis, 4 Dev. 612; State v. Miller, 1 D. & B. 503; State v. Harris, 1 Jones, 190; Ill. R. R. v. Read, 37 Ill. 484; Rail Road v. Pratt, 22 Wallace, 134.

Mr. J. M. McCorkle, for defendant .

READE, J.

1st. An accident is “an event from an unknown cause,” or “Fan unusual and unexpected event from a known cause,” “chance, casualty.” As if a railroad bed be in good order and the engine and cars be in good order, and the engineer and other attendants be skilful and careful; and yet a rail breaks, the train is crushed and the employees and passengers are killed; that is an unusual and unexpected event from a known cause, an accident.

But if the track be out of order and the engine worn and unmanageable and on account thereof there be the like result as above stated on the good road, that is not an unusual and unexpected event, but a usual and expected event from such a cause It is not accident but it is negligence.

Suppose then it were true as contended for by the defendant, that the plaintiff either from the general nature of his employment on the defendant's road or by express contract, assumed the risk of all accidents, yet it would not follow that he would not be entitled to recover. He would still be entitled to recover if his injury resulted not from accident but from the negligenee of the defendant.

2nd. But suppose the plaintiff as an employee on the road knew that the road and the engine were out of order, could he recover?

It would seem that if an engineer whose peculiar duty it is to know the condition of the engine and to give notice of any fault in order that it may be repaired, runs the engine out of order without giving such notice and is injured, he is guilty of at least contributory negligence and could not recover.

So, if a brakeman, as the plaintiff was knows that the brakes are out of order and does not communicate it in order that they may be repaired, and injury results to him therefrom, he would be guilty of at least contributory negligence and could not recover. This is so for two reasons; First. It is the duty of the employees to inform the employer when anything is out of order in their peculiar departments that it may be put right. Second. Because if it be not put right, then it is their privilege to leave the service.

3rd. But here the fault was...