Bass v. Southern R. Co.

• Decision Date: 03 May 1922
• Docket Number: 449.
• Citation: 111 S.E. 851,183 N.C. 444
• Parties: BASS v. SOUTHERN R. CO. ET AL.
• Court: North Carolina Supreme Court

111 S.E. 851

183 N.C. 444

BASS v. SOUTHERN R. CO. ET AL.

No. 449.

Supreme Court of North Carolina

May 3, 1922

Appeal from Superior Court, Mecklenburg County; Finley, Judge.

Action by W. M. Bass against the Southern Railroad Company and others. From a judgment for plaintiff, both parties appeal. No error.

This action was brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), the plaintiff having been injured while working as a brakeman for the defendant in interstate commerce. The charge on the subject of damages was as follows:

"There is one phase of this case which I forgot to call to your attention. This is, if you answer the second issue 'Yes'--that is the issue as to contributory negligence, that plaintiff is guilty of contributory negligence--then you take that in consideration in making up your verdict as to the amount of damages. If you answer 'No,' that he was not guilty of contributory negligence, of course that disposes of that issue and all matters resulting from it, but if you answer it 'Yes,' that plaintiff was guilty of contributory negligence, then you consider that in the question of damages; in other words, the amount of damages that you ascertain that plaintiff would be entitled to recover should be diminished by the amount of negligence that you find the plaintiff contributed towards this sum total of damage; in other words, the net amount of damage should be ascertained, and the plaintiff charged up with the proportionate amount, or with a certain amount of this entire damage in proportion to the amount that he has contributed to the result. The amount of damage that plaintiff would recover would be the amount of negligence that the defendant has been guilty of proportioned to the total amount of negligence, including that the plaintiff has been guilty of and the amount the plaintiff has been guilty of deducted from the total amount, leaving the net amount for you to ascertain as your verdict on the question of damages."

Jno. C Wallace, of Winston-Salem, and Jno. M. Robinson, of Charlotte, for plaintiff.

F. M. Shannonhouse and W. S. Beam, both of Charlotte, for defendants.

CLARK C.J.

The plaintiff, a brakeman of 14 years' experience in the line of his duty was proceeding from the cab of a freight train towards the engine while the train was in motion. While stepping from a box car to a flat car there was, according to his evidence, such a violent, sudden, and unusual jerk in the train that "it jerked the flat car from under my foot, and it jerked so hard it jerked me loose from the car. It jerked my hold loose, and I slipped and went through." The plaintiff's arm was cut off, and he sustained other serious injuries. The train consisted of an engine and 14 cars. These cars had been picked up, and put in the train at Statesville without any inspection being made either of the cars or the drawheads. This appears from the defendant's own witness.

The defendant assigned as error that the court refused to nonsuit the plaintiff. This was rested upon the proposition that under the federal Employers' Liability Act the plaintiff assumed the risk. It is not necessary to cite the numerous cases illuminating the law applicable, for it has been very clearly enunciated in Reed v. Director General, in an opinion filed February 27, 1922, 257 U.S. ___, 42 S.Ct. 191, 66 L.Ed. 480, which holds that--

"The doctrine of the assumption of risk, though not wholly abolished by the federal Employers' Liability Act has no application where the negligence of a fellow servant, which the injured party could not have foreseen or expected, is the sole, direct, and immediate cause of the injury."

In that case Mr. Justice McReynolds says "Seaboard Airline R. Co. v. Horton, 233 U.S. 492--often followed--ruled that the federal Employers' Liability Act did not wholly abolish the defense of assumption of risk as recognized and applied at common law. But the opinion distinctly states that the first section...