Cherry v. Atlantic Coast Line R. Co.

• Decision Date: 10 October 1917
• Docket Number: 171.
• Parties: CHERRY v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

93 S.E. 783

174 N.C. 263

CHERRY v. ATLANTIC COAST LINE R. CO.

No. 171.

Supreme Court of North Carolina

October 10, 1917

Appeal from Superior Court, Pitt County; Stacy, Judge.

Action by T. P. Cherry against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Track repairer, obeying orders of foreman, held not to have assumed risk of injury because master furnished insufficient help.

Civil action tried at April term, 1917, upon these issues:

First. Was the plaintiff injured by the negligence of the defendant as alleged in the complaint? Answer: Yes.

Second. Was the plaintiff employed by the defendant in interstate commerce and engaged in such commerce at the time of his injury? Answer: Yes.

Third. Did the plaintiff voluntarily assume risk of injury, as alleged in the answer? Answer: No.

Fourth. What damages, if any, is plaintiff entitled to recover? Answer: $700.00.

From the judgment rendered defendant appealed.

Skinner & Cooper, of Greenville, for appellant.

Albion Dunn, of Greenville, for appellee.

BROWN J.

The evidence tends to prove that the plaintiff was employed as section master on defendant's road; that among other tracks in plaintiff's charge was a spur track in the town of Greenville, leading to a tobacco company's warehouse. Plaintiff was ordered by the roadmaster, a superior officer to make repairs upon said spur track before the arrival of a freight train, which was then in the block. The spur track was used by defendant in both its interstate and intrastate business. Cars were frequently loaded on the spur track at the American Tobacco Company's warehouse for transportation to other states.

The plaintiff's evidence tends to prove that he, together with one Stancill, a boy 15 years of age, commenced to make the repairs, as directed. These repairs consisted in taking out rotten ties and replacing them with large switch ties weighing something like 400 pounds each. Plaintiff testifies that he had been furnished with no help except the Stancill boy; that he had complained to the roadmaster that Stancill was not sufficient; that the roadmaster ordered him to go ahead and do the best he could; that the roadmaster could not make men work, but for the plaintiff to get them if he could. The plaintiff says that he could not get any men then and gave as a reason for it the pay allowed by the defendant and the time and method of payment. It is contended, and we think supported by the evidence, that the work was required to be done immediately, and that the plaintiff acted in obedience to the orders of the roadmaster.

The plaintiff testifies that he lifted one of the ties and was carrying it to the spur track where it was to be immediately used, when in some way he stumbled and fell, owing to the weight of the tie which fell on him, and seriously injured him. Plaintiff testified that ordinarily it required two and sometimes four full-grown men to handle such ties as were being used on this occasion. There is evidence to the effect that if the boy Stancill had attempted to carry the ties in connection with the plaintiff, it would have hindered the plaintiff, as the plaintiff was so much taller.

It is contended that the plaintiff was not engaged in interstate commerce, and that therefore this action cannot be maintained. It must be admitted that, tested by the decisions of the Supreme Court of the United States on this question, the matter is left in some doubt, but there is one case so much like this that we feel obliged to follow it and apply it here.

The facts in the case at bar are that the plaintiff was carrying cross-ties to a repair track used by the defendant in its interstate commerce, and then immediately to be used by a waiting train. In the case of Pedersen v. Railroad, 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C 153, the plaintiff was injured while carrying bolts to repair a bridge upon the track of the railroad...