Buchanan v. Ritter Lumber Co.
| Decision Date | 13 January 1915 |
| Docket Number | 518. |
| Citation | 84 S.E. 50,168 N.C. 40 |
| Parties | BUCHANAN v. RITTER LUMBER CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mitchell County; Long, Judge.
Action by D. L. Buchanan, administrator, against the Ritter Lumber Company. Judgment for plaintiff, and defendant appeals. No error, and judgment on the verdict affirmed.
In an action for the death of a servant, the master, if desiring a charge on whether other servants pushed deceased from an engine and caused his death should have requested such a charge.
There was evidence on part of plaintiff tending to show that on April 23, 1910, the intestate, an employé of defendant company, then making $1.50 or $2 a day, a young man of 21 or 22 years of age, of good habits, industrious, of good vigor of mind and body, was run over and fatally injured, dying soon after, by a steam engine of defendant company which was being operated over defendant's road in the course of the company's work; that at the time of the injury defendant was engaged in doing a large lumbering business in Caldwell county, N. C., the mills being situate at Mortimer, in said county, and the logs being hauled there from a point about four miles further up, the company having a roadbed to that point, with iron rails and steam engine of the ordinary kind used in such work, constructed so as to move backwards and forwards with equal facility and having a running board 8 or 10 inches along the side and across the rear of the tender, about 10 inches above the track, where employés were accustomed to ride, and where they might stand or move as the course of their duties should require, and there was a handrail higher on the tender, to which they might hold as they stood or moved about; that the particular duties of the intestate, at the time, was as "top loader," one who laid the logs straight and secured them as they were lifted onto the cars by machinery the evidence of plaintiff tending to show that this was not a position of authority, and that he directed the engineer only in the sense that he gave him proper signals as a train of cars had to be moved backwards or forwards in efficient performance of the work; that the engineer was one Joe Effler and, on the day in question, he was running the engine backwards over the road at three or four miles an hour; that intestate and three or four other employés were on the tender and he and two others were standing on the running board at the rear of tender, Garfield Hughes being on the outside to the right, the intestate next, and Arthur Blevins on the left and, at a point not far from the logging yards, a hemlock limb, 5 to 7 feet long and 1 1/2 to 2 inches in diameter at the smaller end, which was stuck in a hole or pile of brush in the bank and, projecting towards the roadbed at an angle of about 45 degrees, struck the intestate about the feet and in some way prized him off the engine, throwing him prone upon the track and, at about 70 to 75 feet further along, he was run over and fatally injured, dying in about an hour and a half. Several eyewitnesses testified to the fact that the intestate was knocked off the engine by the hemlock stick. There was evidence further for plaintiff, tending to show that this stick had been in such a position, leaning towards the road, for a week; that the end was worn slick where it had scraped along the engine and cars; that there were signs of hemlock bark along the journal boxes of the engine and on the running board, giving indication that the stick had been continuously rubbed by the passing cars. There was also a statement of this engineer, Joe Effler, who was afterwards examined as a witness for defendant, and which seems to have been admitted without objection, that he had noticed the stick and its position for a week before the occurrence. There was further testimony for plaintiff tending to show that when he was first knocked off there were calls and cries, both from the crew and from persons outside the track to the engineer in the endeavor to attact his attention, but that he was looking out of the window at the side, and they failed to attract his attention, and the train ran, as stated, 70 to 75 feet up the track before the intestate was run over and finally one man rushed up to the cab and called out to him, when he immediately stopped the engine, which was and had been moving at a very slow pace, not more than 3 or 4 miles an hour.
There was testimony on the part of defendant company to the effect that no stick had been seen in any position threatening the train before this occurrence; that the intestate's position as top loader gave him full authority over the train and crew, and that he was standing on the running board where he had full opportunity to look ahead on the track, and if there was any obstruction threatening the train, he could have observed and noted it; that he was not holding by the rail along the engine at the time, but was standing there smoking with his hands under the cape of his overcoat; that Garfield Hughes, who was on the outside nearer the stick avoided the collision and escaped harm by reason of holding to the handrail and lifting himself up; and, further, that the intestate before his death had said to several persons that he was, in some way, pushed off the running board by one or both of the young men who were in there with him; that these men were there without permission, and the inference being that, in a playful scuffle between them, the intestate was unintentionally knocked off the engine.
On the ordinary issues in such action of negligence, contributory negligence, and damages, there was verdict for plaintiff, and defendant excepted and appealed.
L. C. Bell, of Columbus, Ohio, and Bernard & Johnston, of Asheville, for appellant.
John C. McBee, of Bakersville, and Pless & Winborne, of Marion, for appellee.
HOKE, J. (after stating the facts as above).
It was earnestly urged for error by defendant that his honor refused to nonsuit plaintiff both on the pleadings and the evidence, but the position cannot be sustained.
It is fully established with us that an employer, in the exercise of reasonable care, must provide for his employés a safe place to do his work and a failure of duty in this respect will constitute negligence. Cook v. Cranberry Co., 161 N.C. 39, 76 S.E. 473; Jackson v. Lumber Co., 158 N.C. 317, 74 S.E. 350; Tanner v. Lumber Co., 140 N.C. 475, 53 S.E. 287.
An examination of the authorities will show that the position is very insistent in the case of railroads where a breach of duty in this respect is not unlikely to result in serious and often fatal injuries, and, in various cases, it has been held that these logging roads come clearly within the principle and are held to the same standard of care. Worley v. Railroad, 157 N.C. 490, 73 S.E. 107; Sawyer v. Railroad, 145 N.C. 24, 58 S.E.
598, 22 L. R. A. (N. S.) 200; Hemphill v. Lumber Co., 141 N.C. 487, 54 S.E. 420. In reference to these obligations, in Sawyer's Case, supra, it was said:
"That these logging roads, in various instances and in different decisions, have been described and located as railroads and held to same measure of responsibility and the same standard of duty" (citing Hemphill's Case, supra, and Simpson v. Lumber Co., 133 N.C. 96, 45 S.E. 469, and Craft v. Timber Co., 132 N.C. 156, 43 S.E. 597).
And, further:
"This * * * duty arises not so much from the fact that railroads are common carriers or quasi public corporations as from the high decree of care imposed upon them on account of the dangerous agencies and implements employed and the great probability that serious and in many instances fatal injuries are almost certain to result in case of collision."
Considering the present case in the light of these decisions, it is clear, we think, that the court would not have been justified in directing a nonsuit, there being facts in evidence tending to show that, for a week or more, the defendant's road had been left with a limb or snag deep in the ground at one end and leaning over towards the railroad track in such manner that it, day by day, scraped along the sides of the engine and cars, and where it was liable, at any time, to cause an injury of some sort to the train or its employés. Hudson v. Railroad, 142 N.C. 198, 55 S.E. 103; Drum v. Miller, 135 N.C. 204, 47 S.E. 421, 65 L. R. A. 890, 102 Am. St. Rep. 528.
Again a nonsuit would have been improper because of facts in evidence tending to show that, after the intestate was knocked off the engine and was prone upon the track, the train, running at only three or four miles an hour, continued to move along the track for 70 or 75 feet before the fatal injury was received, and meantime persons on the train and off endeavored in every way to attract the attention of the engineer, and failed to do it until one of...
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