Bird v. United States Leather Co

• Decision Date: 11 December 1906
• Citation: 143 N.C. 283,55 S.E. 727
• Court: North Carolina Supreme Court
• Parties: BIRD . v. UNITED STATES LEATHER CO.

55 S.E. 727

143 N.C. 283

BIRD .

v.UNITED STATES LEATHER CO.

Supreme Court of North Carolina.

Dec. 11, 1906.

1. Master and Servant—Personal Injuries —Fellow-Servant Act—Application.

The fellow-servant act (Priv. Laws 1897, p. 83, c. 56) applies to a corporation engaged in manufacturing, in aid of which it owns and operates a railroad.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 354-374.]

2. Master and Servant—Personal Injuries —Questions for Jury.

Plaintiff, a foreman in charge of a gang of workmen, was employed in moving and unloading cars, which it was the duty of an engine crew employed by the same master to bring near the point for unloading and leave on a grade properly braked or scotched. Held, that, on plaintiff being injured by a collision caused by the cars so left on the track running down the grade against those on which plaintiff was standing, he was entitled to have the question of the negligence of the engine crew submitted to the jury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1051-1067.]

3. Same—Evidence—Sufficiency.

In an action by a servant for personal injuries, evidence examined, and held to sustain the finding of the jury that the plaintiff was not guilty of contributory negligence.

4. Same—Fellow Servants.

A servant attending to his own work in a customary manner was not required to anticipate the negligent act of fellow servants.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 674, 677.]

Appeal from Superior Court, McDowell County; Cooke, Judge.

Action by V. W. Bird against the United States Leather Company. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.

There was evidence tending to show: That defendant was a corporation engaged in the business of manufacturing leather and extracting tunic acid, and also owned and operated about 10 miles of steam railway, standard gauge, in and about their plant at Old Fort, N. C, having their own engines, cars, crews, etc. That plaintiff, an employe of defendant company and foreman of a lot of hands engaged in unloading cars of defendant, on or about December 20, 1904, was injured under the following circumstances: The defendant had a railway track laid on their grounds at Old Fort, running from the bark shed to the chipper house. Here the cars entered the chipper house shed, were moved along the track opposite the chipper machines, placed at intervals, and unloaded. This track, as it approached the chipper house shed, was on a downward incline, and the method pursued here was for the engine and crew of defendant company to push the loaded cars to a point near the chipper house shed, where they were stopped and left by this crew, and scotched or held by brake till the chipper house crew was ready to unload them. That the engines were not al lowed under the shed, but, when the cars were to be unloaded, plaintiff and his gang pushed them along under the chipper house shed, unloaded the cars, moving them along, when they were done at the further end of the shed, where they were taken by the switching engines and carried away. On this occasion plaintiff and his hands were engaged in unloading cars under the shed, and were moving the cars along the track so as to put them in position for unloading, and in the performance of his duty plaintiff got on the cars to apply the brakes and stop them at the proper point That plaintiff had one foot on one car and one on the other when applying the brakes, and that plaintiff was following the customary way of using the brakes In cars of that kind. That these cars were of different heights, one being a Southern Railway car, 12 to 14 inches higher than the other, coupled by a goose neck. If they had been of the same height, he could have placed his feet on the body of each car and probably have escaped an injury. That while plaintiff was In this position, In the act of applying the brakes, several other tannery cars, which had been left on the track by the engine crew some 30 steps away, moved from their position and rolled down the incline, striking the car on which plaintiff was standing, causing a collision, and doing plaintiff severe injury. Plaintiff testified that he had given no orders to any of his men to move the cars which were on the incline. Testifying as to the duties concerning them, plaintiff stated on examination: "I don't know who put the brakes on those tannery cars [those on the incline]. The engine gang did that. It was their duty to bring the cars there and stop them on the incline, and it was the duty of my force to bring them down when we were ready to unload them." J. C. Moore, witness for plaintiff, testified: "We were moving the cars into place when plaintiff jumped up on it to put the brakes on and stop them at the proper point. I was pushing it down, and about a second after Bird got up the tannery company's car hit me on the back. I looked around and saw plaintiff's foot caught between the cars." The three ordinary issues in actions for negligence were...