Barrett v. Seabd. Air Line Ry. Co

• Court: North Carolina Supreme Court
• Writing for the Court: CLARKSON
• Citation: Barrett v. Seabd. Air Line Ry. Co, 136 S.E. 5, 192 N. C. 728 (N.C. 1926)
• Decision Date: 15 December 1926
• Docket Number: (No. 438.)
• Parties: BARRETT. v. SEABOARD AIR LINE RY. CO.

136 S.E. 5

(192 N.C. 728)

BARRETT.

v.SEABOARD AIR LINE RY. CO.

(No. 438.)

Supreme Court of North Carolina.

Dec. 15, 1926.

Appeal from Superior Court, Richmond County; Sinclair, Judge.

Action by T. J. Barrett against the Seaboard Air Line Railway Company. Judgment for defendant, and plaintiff appeals. Reversed.

W. R. Jones, of Rockingham, John C. Sikes, of Monroe, and Stewart, McRae & Bobbitt, of Charlotte, for appellant.

Varser, Lawrence, Proctor & McIntyre, of Lumberton, for appellee.

CLARKSON, J. This is an action for actionable negligence brought by plaintiff against the defendant for injuries alleged to have been sustained by him. The defendant introduced no evidence, and at the close of plaintiff's evidence made a motion for judgment as in case of nonsuit. C. S. § 567. This motion was sustained by the court below. Plaintiff assigned error and appealed to this court.

The testimony of plaintiff was to the effect: That on January 2, 1924, he was engaged in car repairing work for defendant at Hamlet. That he was directed by the foreman of defendant to make repairs on a refrigerator car. There was an end sill to be put in, and plaintiff asked the foreman for some help, as he could not do it without help, but the foreman said he had no one to help him and directed him to do the work. The work to be done was to put in a splice board that went underneath the car; there were bolts to be put in and the board had to be held up. The car was so made that it was too low for him to stand on his knees and a little too high to sit down flat to do the work, so the work had to be done in a leaning position, and it required a lot or strain to hold the board up. The bolts were 8-inch to go in, and they had to be pushed up pretty hard, and the plank had to be held, and one man could not do it by himself. At the time he was trying to do it, a pain struck him in the back, he dropped everything, and the board fell on him, and he could not move; it paralyzed him. The board was heavy, hard oak, 2x9 inches, 6 feet long. He could not get the bolts in with his hand. They were too close to push in. He could not get the hammer in between the bolts. He was trying to push them in, but he could not do it. Sometimes they had to take a jimmy bar and prize those bolts. One man had to hold while the other did it. The foreman did not give him any helper to do this work. His body gave way, and he fell to the ground, and the board fell upon him.

H. C. McRae, for plaintiff, testified:

"Have worked for defendant off and on for the last 8 years; repaired cars; put on splice boards; know custom of the defendant and that it was the custom in January, 1924, to furnish a helper to a car man who was required to put on a hardwood splice board 2 inches thick, 9 inches wide, and 6 feet long on a refrigerator car. Plaintiff's reputation is good."

Cross-examination:

"I have never put a splice board on by myself. It would be hard to do; I never done it. If you could get a bolt through it would hold the splice board up, but sometimes it is hard to get the one bolt through. Sometimes they fit, and sometimes they don't."

Plaintiff introduced several other witnesses who testified substantially the same.

In Pigford v. Railroad, 160 N. C. at page 101, 75 S. E. 863, 44 L. R. A. (N. S.) 865, speaking to the subject, citing numerous cases, this court said:

"It is as much the duty of the master to exercise care in providing the servant with reasonably safe means and...