Barnes v. Seaboard Air Line Ry. Co.
| Decision Date | 15 October 1919 |
| Docket Number | 295. |
| Citation | 100 S.E. 519,178 N.C. 264 |
| Parties | BARNES v. SEABOARD AIR LINE R. CO. ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Robeson County; Stacy, Judge.
Action by Rowland Barnes, administrator against the Seaboard Air Line Railroad Company and the American Railroad Express Company. From a nonsuit, plaintiff appeals, Reversed.
Where one engaged by the agent of an express company to assist in loading a heavy shafting on a train was killed as a result of a fall of the same, as experienced lumberman familiar with similar loading problems should have been allowed to answer a question as to his observation of the cause of the fall of the shafting, notwithstanding objections that the question called for the conclusion of the witnesses.
Where one employed to assist in loading a heavy shafting into an express car was killed when one end of the shafting rolled off of the truck on which it was resting, held, that an experienced lumberman who witnessed the accident should have been allowed to answer a question as to the effect the moving of the train had on the loading operation; it appearing that the shafting in the first instance was placed at right angles to the door of the car in which it was to be loaded, and that after the train was moved forward there was an attempt to load, though shafting was at an acute angle to the door.
Johnson & Johnson, of Lumberton, for appellant.
McIntyre Lawrence & Proctor, of Lumberton, for appellee Seaboard Air Line Ry. Co.
McLean Varser, McLean & Stacy, of Lumberton, for appellee American R. Express Co.
This was an action for the wrongful death of plaintiff's intestate, a farmer about 21 years og age, who had come to Lumberton on some business. While at the station of the defendant railroad company, the agent of the express company engaged him to help load a heavy iron shafting on the express car in the defendant railroad east-bound train. The shafting was 20 to 30 feet long, about 8 inches in diameter, in a box about 12 inches square, and estimated to weigh about 2,000 pounds. The loading was done under the supervision of the agent of the express company who hired three bystanders to assist the clerk of the express office. The agent was a lady and rendered no assistance beyond her supervision. The shafting was placed on two trucks at right angles to the door of the express car. The deceased was one of those who had hold of the end of the shafting nearest the express car, and the others were on either side of the box behind him. While the men were in the act of placing the front end of the shafting in the car door, the defendant railroad company suddenly without warning, started the train, moving it up about 30 feet, which made it necessary to change the direction of the shafting. Express packages had been piled on the ground, and on that account the truck farthest from the train could not be moved up so as to be at right angles to the door again. The truck nearest the train was moved forward to the express car door in its new position, and it was then removed, leaving the front end of the shafting on the shoulders of the four or five men while the other end rested on the extreme corner of the rear truck, where the men bearing the front end and looking towards the car door could not see it. In the attempt to shove the boxed shafting into the car, in this diagonal manner, there was nothing to prevent it rolling off the truck, as there would have been if the shafting had been shoved in at right angles. All of the men were near the car door, as it naturally required their united strength to lift the front end of the 2,000-pound package. The rear end of the shafting twisted off the rear truck as the change to a diagonal had moved it to the corner of that truck from which it tumbled, falling to the ground with great violence. The end nearest to the train bounded upward with such violence that it was forcibly wrested from the shoulders of the men who were carrying it, and the deceased, who was in the acute angle nearest the train, was caught between the shafting and the train and his skull smashed, caused his death.
The witness Holloway who was a lumberman with 30 years' experience in doing similar work to loading this shafting, testified that the method pursued in attempting to put on the shafting after the moving forward of the car looked so dangerous to him that he was tempted to protest, but refrained from doing so for fear he might seem officious. He further testified that when the shafting was first placed for loading at right angles to the train it was squarely on the truck and would not have fallen off, but that, in moving the end next to the train after the train had pulled up, the further end of the shafting was turned diagonally on the extreme edge of the truck, and no one was there, nor any effort made, to keep the shafting from falling off. This witness also testified that, if the shafting could have again been placed at right angles to the car, it could have been loaded with safety because it would not have rolled off the truck. The evidence showed, however, that the express had been piled on the ground in such manner that it was impossible to move the truck around in a suitable position; that is, at right angles to the train. The train was not moved back, 30 feet to the original position, thus avoiding the danger of attempting to put the shafting on in this diagonal manner. The agent of the express company was standing there, and also a clerk in the express office who had hold of the truck handles and could see the position of the rear end of the shafting, but no effort was made to adjust the shafting or place some one there to hold it, which it is doubtful if one man could have done when the movement of the four or five men at the front end would necessarily constantly change the position of the shafting on the rear truck.
The plaintiff also offered to show that the witness Davis, who was clerk of the express company at the time deceased was killed, was employed for the company by Mrs. Thomas, its agent at that station to assist her. It was error to exclude this, as it tended to show that he was a vice principal, and as such had charge of loading the shafting, and his conduct in failing to place some one at the rear truck to prevent the falling of the shafting, if found to be negligent, was the negligence of the company, and not that of a fellow servant of the intestate, who was a bystander picked up for the...
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