Bean v. Western N. C. R. Co

• Decision Date: 28 December 1890
• Court: North Carolina Supreme Court
• Parties: Bean . v. Western N. C. R. Co.

12 S.E. 600

107 N.C. 731

Bean .

v.Western N. C. R. Co.

Supreme Court of North Carolina.

Dec. 28, 1890.

Negligence of Master—Pleading — Evidence— Fellow-Servants.

1. In an action against a railroad company for injuries to a brakeman, defendant pleaded a release of the damages due to the injury. The reply denied the execution of the release, and alleged that when it was executed it was under the impression, on plaintiff's part, that it was a receipt for wages due him, and that he was unable to comprehend the purport of the release by reason of the bodily pain and mental anxiety he was then suffering in consequence of his injuries. Held that, though there was no allegation of fraud, the reply shows matter sufficient to invalidate the alleged release.

2. Instead of the single issue as to the validity of the release, the court submitted to the jury three issues, viz., whether plaintiff executed the instrument thinking it was a receipt for wages; whether, at the time it was obtained, he was suffering bodily pain and mental anxiety due to his injuries; and whether, by reason of such suffering, he was unable to comprehend the effect of the release. Held, that this was not prejudicial to defendant.

3. A railroad company having cut its roadbed along the side of a mountain, it is negligence for it to leave masses of rock, which had been loosened in blasting, in such a position that they are liable to fall at any time upon the track; and it is not relieved from liability for a consequent injury to an employe on its train by the fact that it hires a track-walker, whose duty it is, before and after the passage of each train, to see whether rock has fallen, or is about to fall.

4. The danger in such case is not one with knowledge of which the trainmen are chargeable, where it is shown that they, when on the train, are on a level with the rock, which does not look dangerous from that point; and they will not be held to have assumed the risk, unless knowledge is proved.

5. Assuming that the track-walker is a fellow-servant of the trainmen, his negligence will not bar a recovery, because without the prior negligence of defendant his negligence could not have resulted in the injury.

Appeal from superior court, Buncombe county; Connor, Judge.

The plaintiff brought this action to recover damages for injuries sustained by him while he was in the service of the defendant railroad company as a brakeman on the freight train, occasioned by its negligence, etc. Among other things, it is alleged in the complaint: "(3) That at the point where the engine and cars were thrown from the track, as mentioned in the preceding paragraph, there was a large mass of stone, being the end of an adjacent mountain, standing up at an angle of between forty-five and sixty degrees, extending into the river: the latter being at this point of the depth of about twenty feet. The defendant company, in making room for the road-bed, did not cut the full width of the track into the said mass of stone, so as to give the said road-bed a firm foundation, but built a part of the track upon a substructure of wood and dirt that had a precarious footing on the sloping mass of stone aforesaid. This mass of stone on the opposite side of the track, and forming the upper portion of the cut at this point, was much loosened by the blasting that was done there, where the track was located by the defendant; and, being left without sufficient support at its foundation, pieces of it were liable at any time to be precipitated upon the track. The stone that caused the engine to be thrown from the track, as hereinbefore mentioned, was in the large mass referred to, and, after the location of the road-bed by the defendant, had been left, one end of it, and part of one side, wholly unsupported, and the upper end of it was so feebly held by the mass above it that the jar and concussion occasioned by the passing trains were likely at any moment to precipitate it upon the track, which was only a few feet from it. (4) The unsafe condition of the road-bed and track at this point, their proximity to the river on one side, and the mass of stone on the other, considering the depth of the river and its rapid flow, and the loose and unsubstantial character of the overhanging mass of stone, rendered the passage of an engine and cars on the road extremely hazardous, so much so that in case of accident, escape from danger, by leaping to the right or the left, was impossible. Of all this the defendant might and would then and theretofore have known by due care; and, had it regarded its duty, it would have so located its road-bed, and protected the track from the overhanging mass of stone, as to have prevented obstructions from falling on the track, and otherwise have rendered the road safe and secure against damage to employes and others passing over the road. And yet the defendant, not regarding its duty, was so careless, negligent, and unskillful in this behalf that it failed to provide a safe road-bed and track, andfailed to keep it free and clear of obstructions; by reason whereof the plaintiff, while in the employment of the defendant, and while engaged in the discharge of his duties as brakeman, and while he was himself in no fault, received the aforesaid injuries in the manner hereinbefore described. " The defendant denied the material allegations of the complaint, and alleged as affirmative defense: " (1) That, if injured at all, it was not by reason of the negligence of this defendant, but by plaintiff's negligence, contributing to the said injury. (2) That, if injury, it was not by reason of the negligence of defendant, as alleged in the complaint, but by reason of the negligence of a fellow-servant of the plaintiff in the service of the defendant." For a third defense to this action, defendant says: "(3) That after the injuries complained of, and before the commencement of this action, the plaintiff, on the 18th day of December, 1885, executed and delivered to this defendant a release from all liability to him (plaintiff) on the part of defendant by reason of the in juries received and suffered by the plaintiff, as alleged in the complaint. That the said release was executed by this plaintiff, and delivered as aforesaid, for valuable considerations, and in full settlement of any claim plaintiff may have had against this defendant by reason of any negligence, as alleged in the complaint of plaintiff, on the part of this defendant, its officers or agents; and this said release this defendant pleads in bar of this action, and makes due protest of the same in this, its answer." The plaintiff replied to this answer as follows: "(1) That he denies the same to be true. (2) That, if he did sign the said alleged release, he did it under the impression, belief, and understanding that he was signing a receipt for wages then due him by the defendant company, and that at said time, to-wit, the date of the alleged release, the defendant company was indebted to the plaintiff in the sum of about fifty dollars, due as wages earned in the employment of said company. (3) That said alleged release was attained by the agent of the defendant company in a few days after the said injuries were received, and while plaintiff was suffering great bodily pain therefrom, mental anxiety by reason thereof, and was unable to comprehend the meaning or effects of the same. (4) That the plaintiff was at the time the alleged release was procured, and is now, an ignorant, illiterate colored person, unable to read or write, and did not understand or comprehend the purport of said release."

At the trial, on motion of the plaintiff, the following issues were submitted to the jury: "(1) Did the plaintiff sign and deliver the release mentioned in the answer of December 18, 1885? (2) Did the plaintiff sign said release under the impression, belief, and understanding that it was a receipt for wages due him from the defendant company? (3) Was said release obtained by the defendant company while the plaintiff was suffering great bodily pain and mental anxiety from the injuries received by him? (4) Was the plaintiff, by reason of such bodily pain and mental anxiety, unable to comprehend the purport and effect of such release? (5) Was the plaintiff injured by the negligence of the defendant company as alleged? (6) Did the plaintiff, by his negligence, contribute to the injury? (7) Was the plaintiff injured by the negligence of a fellow servant, and, if so, what one? (8) What damage has plaintiff sustained by reason of said injury?" The defendant excepted to the above issues, and tendered the following as the issues arising upon the pleadings: "(1) Wan the plaintiff injured by the defendant company as alleged in the complaint? (2) Did the plaintiff contribute to his injury by his negligence? (3) Was the plaintiff injured by the negligence of a fellow-servant, and, if so, what one? (4) Did the plaintiff execute and deliver to the defendant company the paper writing mentioned in the pleadings as a release of his claim for damages, and in settlement of the same? (5) What damage, if any, is the plaintiff entitled to recover?" Defendant excepted to the ruling of the court refusing to submit the issues tendered by it. The jury responded to the first issue, " Yes;" to the second, " No;" to the third, "Yes;" to the fourth "Yes;" to the fifth, "Yes;" to the sixth, "No;" to the seventh, "No;" and to the eighth, "$1,500, "—which responses duly appear in the record proper.

The following is so much of the evidence as has reference to the stone in the precipitous side of the mountain, the condition thereof, and the fall of parts of the same on the road: "The stone had to be cut out to make the track at the place where the train run off. A rock had fallen on track from the side of the mountain. I lived in 1885 at Hot Springs. 1 am acquainted with the road where the accident occurred. The railroad, after crossing the bridge, passes a curve. Where the...