Cogdell v. Southern Ry. Co

• Citation: 40 S.E. 202,129 N.C. 398
• Parties: COGDELL v. SOUTHERN RY. CO.
• Decision Date: 20 December 1901
• Court: United States State Supreme Court of North Carolina

40 S.E. 202
129 N.C. 398

COGDELL
v.
SOUTHERN RY. CO.

Supreme Court of North Carolina.

Dec. 20, 1901.

RAILROAD EMPLOYES—ASSUMPTION OF RISK —CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY—INSTRUCTIONS.

1. Priv. Laws 1897, c. 56 (Act Feb. 23, 1897), providing that any employé of a railroad company suffering injury in the course of his employment by reason of any defects in the machinery, ways, or appliances of the company shall be entitled to maintain an action against the company, deprives all railroad companies of the defense of assumption of risk, whether resting in contract, express or implied, and

[40 S.E. 203]

whether treated directly or under the fellow servant doctrine.

2. The servant is not guilty of contributory negligence in undertaking the performance of a dangerous work unless he performs it in a negligent manner, or unless the act itself is obviously so dangerous that in its careful performance the inherent probabilities of injury are greater than those of safety.

3. In an action by a servant for personal injuries, where there was more than a mere scintilla of evidence tending to prove the defendant's negligence, the case could not be taken from the jury.

4. In an action for personal injuries the court properly refused to charge as to contributory negligence on an issue whether defendant was negligent, especially where it gave such charge as a separate issue.

5. An instruction that if the jury found, from the testimony of defendant's witnesses, and from that of a particular witness for plaintiff, that certain facts were so, they should report a certain finding was properly modified so as to require them to find such fact from all the testimony; the instruction as requested tending to give undue credit to the witnesses referred to.

6. The credibility of a witness is a matter peculiarly within the province of the jury, and depends not only on his desire to tell the truth, but also on his insensible bias, his intelligence, his means of knowledge, and powers of observation.

Cook, J., dissenting.

Appeal from superior court, Cumberland county; Moore, Judge.

Action for personal injuries by C. T. Cog-dell against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action for damages for personal injuries to the plaintiff caused by the alleged negligence of the defendant. The material allegations of the complaint are as follows: "(2) That the plaintiff was, at the date hereinafter mentioned, and for some time previous thereto, an employé of the said defendant corporation in the capacity of a fireman on one of the said defendant's engines, then operating at Winston-Salem, N. C. (3) That on the 11th day of November, 1899. as it was his duty and daily...