Avery v. Oliver

• Decision Date: 06 December 1904
• Citation: 137 N.C. 130,49 S.E. 91
• Parties: AVERY v. OLIVER et al.
• Court: North Carolina Supreme Court

49 S.E. 91

137 N.C. 130

AVERY

v.OLIVER et al.

Supreme Court of North Carolina.

Dec. 6, 1904.

master and servant—injuries to servant— fellow servants—railroads—statutes—application—nonsuit.

1. Priv. Laws 1897, p. 83. c. 56, provides that any employe of any railroad company in the state who shall suffer injury in his employment by the negligence of any other servant, etc., shall be entitled to maintain an action against such company. Held, that where plaintiff was injured by the negligence of a fellow servant, while in the employ of defendant O., who was engaged by defendant railroad company to lower a grade in its track, and plaintiff claimed that O. was the servant of the railroad company, and not an independent contractor, as the railroad claimed, it was error to direct a nonsuit on the ground that plaintiff was guilty of contributory negligence, without first requiring a determination of the relation of the defendants to each other.

2. Priv. Laws 1897, p. 83, c. 56, providing that railroad companies shall be liable for injuries to employes by the negligence of fellow servants, has no application to injuries sustained by the servant of an independent contractor of a railroad company by reason of the negligence of a fellow servant.

Appeal from Superior Court Burke County; M. H. Justice, Judge.

Action by Rufus Avery against W. J. Oliver and another. A nonsuit was directed at the close of the plaintiff's testimony, and he appeals. Reversed.

The plaintiff brought this action to recover damages for injuries to himself, which he alleges were caused by the negligence of the defendants. The testimony tended to show that he was employed by one Walter Queen, foreman of defendant Oliver, the latter having been employed by his codefendant, the Southern Railway Company, to lower a grade on the line of its railway about one mile west of Morganton. In order to do the work it was necessary to remove earth and rock from a cut, which was carried in cars over the road of defendant company to a place where the grade was being raised by it about two miles east of Morganton, and dumped there from the cars. While the plaintiff was thus employed, Walter Queen ordered him and others to go behind one of the dump cars, which was on a trestle, andknock the chains loose and dump the car which was loaded with earth and stone. He obeyed the order, and tilted the car, but it would not dump the contents, and, on account of the greater weight of the earth and stone at the end of the car where he was placed, it fell back and caught and injured him. The cars were secured by chains on each side, and when they were dumped the stay chains were unfastened on what appeared to be the lightest side, so that the car would dump from the other side by reason of the greater weight there. If it did not dump, the hands would go on the side where the chains were loose and push the car over, without unfastening the chains on the other side, which were intended to stay the car, or to keep it in the proper position, and to prevent it from rebounding and injuring the hands. The chains on the other side had been unfastened by one of the hands, Will Largent, and the plaintiff knew, at the time he attempted to dump the car, that the chains on that side were loose, but did not think it was his business to have them fastened. If the chains on that side had been fastened, the accident would not have occurred, and the plaintiff knew this at the time. "The right way to dump is to fasten the chains on the other or opposite side of car and keep out of the way." There was further testimony tending to show that one Parsons, an engineer of the defendant company, was in charge of the work when Oliver was doing the grading. He showed, how to make the grading, and set pegs, and inspected the work. McDowell testified that Parsons was the resident engineer of defendant company, and had charge, as engineer, of the work Oliver was doing, and everything was under his control. He would sometimes direct the work and the dumping. "He was all over the work." He would tell the hands when to dump the rock. Oliver had charge and employed his own hands, but Parsons directed the work. A freshet washed the piles away, and Parsons directed the work of restoration. This is a sufficient statement of the evidence to present the view taken by this court of the case. At the close of the testimony for the plaintiff, the court, on motion of defendant, nonsuited the plaintiff, who excepted and appealed.

Avery & Avery and Avery & Erwin, for appellant. J. T. Perkins, for appellee.

W. J. Oliver. S. J. Ervin, for appellee Southern Railway Company.

WALKER, J. (after stating the facts). In an action for negligence the first issue always is, was the plaintiff injured by the negligence of defendant? When contributory negligence is pleaded, the next issue is, did the plaintiff, by his own negligence, contribute to his injury? And in a case like this one these are the only issues necessary to be submitted to the jury in order to as certain whether the plaintiff has established his cause of action, as the third issue, sometimes submitted when the last clear chance to avoid the injury may have been open to the defendant, does...