Cogdell v. Southern Ry. Co.

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

40 S.E. 202

129 N.C. 398

COGDELL v. SOUTHERN RY. CO.

Supreme Court of North Carolina

December 20, 1901

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

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

Cook J., dissenting.

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.

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 custom as such employé the plaintiff was working and performing his duties as fireman upon said engine. (4) That while so working as fireman upon said engine it was his duty to shake the clinkers or cinders out of the grate, to clean the fires, from time to time, as became necessary. (5) That on the said date, while cleaning fires as aforesaid, plaintiff was thrown down violently against the boiler, falling with great force, by reason of the defective condition of the grate handle or shaker bar rigging, which defective condition caused the lever to slip off while plaintiff, with his full weight and strength, was cleaning fires as aforesaid. (6) That at the time aforesaid the said defendant was, with gross carelessness and negligence, willfully operating said engine in its defective condition, to the great danger of plaintiff. (7) That in consequence of said defective condition of said machinery, which could and ought to have been kept in good condition, the plaintiff, when thrown down violently as aforesaid, was very painfully and dangerously and permanently injured." There was evidence tending to sustain the plaintiff's contention. The defendant asked that the following issues be submitted to the jury: "(1) Was the plaintiff injured by the negligence of the defendant in the manner alleged in the complaint? (2) Did the plaintiff, by his own negligence, contribute to the injury complained of? (3) Did the plaintiff assume the risk of any defect in the shaker bar or grate handle? (4) What damages, if any, has the plaintiff sustained?" The court submitted the first, second, and fourth issues as requested, but refused to submit the third issue, and the defendant excepted. The issues submitted were found in favor of the plaintiff.

F. H. Busbee, for appellant.

N. A. Sinclair, for appellee.

DOUGLAS, J. (after stating the facts).

In view of the act of February 23, 1897 (Priv. Laws, c. 56), the court properly refused to submit the third issue tendered by defendant. This point has been so fully considered in the cases of Coley v. Railroad Co., 40 S.E. 195, and Thomas v. Railroad Co., 40 S.E. 201 (both at this term), that further discussion seems unnecessary. It may now be considered settled that the said act deprives all railroad companies operating in this state of the defense of assumption of risk, whether resting in contract, express or implied, and whether treated directly or under the doctrine of fellow servant. It is further settled that the plaintiff 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. Hinshaw v. Railroad Co., 118 N.C. 1047, 24 S.E. 426; Coley v. Railroad Co., and Thomas v. Railroad Co., supra.

We see no error in the charge. As there was more than a scintilla of evidence tending to prove the negligence of the defendant the case could not have been taken from the jury. Anniston Nat. Bank v. School Committee of Durham, 121 N.C. 107, 28 S.E. 134; Cable v. Railway Co., 122 N.C. 892, 29 S.E. 377; Moore v. Railway Co., 128 N.C. 455, 39 S.E....