Cogdell v. Wilmington & W. R. Co

• Decision Date: 13 May 1902
• Citation: 130 N.C. 313,41 S.E. 541
• Court: North Carolina Supreme Court
• Parties: COGDELL v. WILMINGTON & W. R. CO.

41 S.E. 541

130 N.C. 313

COGDELL

v.WILMINGTON & W. R. CO.

Supreme Court of North Carolina.

May 13, 1902.

RAILROADS—CARRIAGE OF GOODS—INJURY TO SERVANT OF CONSIGNEE—PLACE OF DELIVERY—EVIDENCE — OPINION —CONTRIBUTORY NEGLIGENCE — PROOF — SUFFICIENCY — INSTRUCTIONS.

1. In an action against a carrier for the death of an employe of a consignee of goods while unloading them from a car, due to the unsoundness of an apron covering the space between the car and the platform, the exclusion of the opinion of a witness as to whether, if the apron had been sound, a man of decedent's weight could have stood on it with safety while unloading the car, or fallen on it from the top of the car without its breaking under him, was not prejudicial where the jury found that defendant was negligent in maintaining the defective apron.

2. The testimony was properly excluded, the subject not being one for opinion evidence.

3. The exclusion of evidence showing for what purpose the apron was useful and convenient, and that, if constructed of sound planks, and properly fastened, a man could stand on it while unloading a car, was not prejudicial where the jury found that defendant was negligent in maintaining the defective apron.

4. The evidence was properly excluded, there being no evidence tending to show that the decedent stood upon the apron, unloading the car, at the time of the accident.

5. In an action against a carrier for the death of an employe of a consignee of goods while unloading them from a car, defendant claimed that decedent was guilty of contributory negligence in going upon the car while so drunk that he could not take care of himself, and introduced testimony that decedent was a chronic drunkard, and was so drunk when he started to the car, 15 or 30 minutes before the accident, that he staggered; that he drank considerably before going to the car, and had some whisky with him. Plaintiff's evidence was that decedent was a sober and industrious man, and that he was sober at the time he went to unload the car. Held, that the evidence warranted the jury in finding that decedent was guilty of contributory negligence, though, under Acts 1887, c. 33, defendant had the burden of proving such negligence.

0. In an action for the death of plaintiff's intestate, defendant's answer 'that the death of the intestate was caused by the negligence andfault of the intestate himself" raised the defense of contributory negligence, within Acts 1887, c. 33, providing that in actions to recover damages by reason of defendant's negligence, where contributory negligence is relied upon as a defense, "it shall be set up in the answer."

7. In an action for the death of an employe of a consignee of goods while unloading them from a car, plaintiff's witness testified that decedent, while on the car, seemed to be sober. Defendant's witnesses testified that the witness had told them that decedent was drunk; that they reduced to writing what he had told them; and that the statement was read over to him, but he did not sign it. The court permitted the witnesses to refresh their recollection from the statements. Held, that the statements were not admissible in evidence.

8. In an action against a carrier for the death of an employe of a consignee of goods while unloading them from a car, an instruction that if decedent voluntarily became intoxicated, so as to impair his capacity to perform his work with safety, and was injured in consequence thereof, he would be guilty of contributory negligence, was properly given.

9. An instruction that if decedent did not know, nor could have discovered with ordinary inspection, that the apron covering the space between the car and platform was built of unsound planks, and if he fell from the car on the apron he would not be guilty of contributory negligence, was properly modified by adding, "unless the fall from the car was the result of want of care."

10. An instruction that, if decedent, by reason of intoxication, fell from the car on the apron covering the space between the car and the platform, and that the apron would have sustained his weight if built of sound material, defendant would be liable, was properly refused.

11. It was not error for the court to refuse an instruction that the law presumed that a person killed by the negligence of another has exercised due care himself, when the court, pursuant to Acts 1887, c. 33, imposed on defendant the burden of proving that decedent was guilty of contributory negligence.

Douglas and Clark, JJ., dissenting.

Appeal from superior court, Beaufort county; Allen, Judge.

Action by Maria Cogdell, administratrix of Samuel Cogdell, deceased, against the Wilmington & Weldon Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Chas. F. Warren, for appellant.

Small & McLean, for appellee.

COOK, J. Defendant company delivered at Washington, upon its track at the wharf, a car load of coal consigned to the Stryon Transportation Company. According to the agreement between them, it was the duty of the consignee to unload the coal from the car. Plaintiff's intestate was employed by the consignee to unload the coal, and while undertaking to do so fell into the river, and was drowned, on account of which this action was instituted. The contention of plaintiff is that defendant company was negligent in the construction of its premises provided for delivering this freight, and in leaving an open space between the car and platform, two or three feet wide, over the water of the river, and in covering said space with an apron made of cedar-hearted or unsound tim ber; and while her intestate was using said apron by standing thereon in unloading coal from the car it broke, and intestate fell through into the water, and was drowned; or that, if not using the apron to stand upon, he slipped and fell on the same, which, by reason of its unsoundness, broke, and he fell through into the water, and was drowned. Defendant, after denying its negligence, avers in its answer "that the death of intestate was not caused by any negligence of defendant, but was caused by the negligence and fault of plaintiff's intestate himself, " and insists and relies upon its plea of contributory negligence. There were three issues submitted to the jury: (1) Did Samuel Cogdell come to his death by the negligence of defendant, as alleged? (2) If so, was he guilty of contributory negligence? (3) What damages, if any, is the plaintiff entitled to recover? The jury answered the first two in the affirmative, and therefore did not respond to the third. Judgment was rendered in favor of defendant, and plaintiff appealed.

Of the 38 exceptions taken by plaintiff, those which relate to the negligence of defendant company and to the damages are not material to this decision. The evidence relating to the accident shows that intestate, when last seen alive, was upon the car of coal, throwing off lump coal with his hands upon the platform; and a few minutes thereafter he was missed, search made, and his body found in the water. When taken from the water, his body was still warm, and bruises were found upon his left knee, shoulder, back of his head, and about his right eye. Upon the side of the coal car, about six inches from the top, were found finger prints of both hands, ranging straight down, and the print of the toe or heel of a shoe near the finger prints. The prints raked about one-half way down the side of the car, or a little more. The "scrape took the paint off, " and the apron was broken immediately below the finger and toe (or heel) prints. The apron was made of planks an inch or an inch and a half thick, 1G feet long, and nailed together with battens across the underside, and was fastened to the platform with hinges, and folded over, so that the other side rested against the coal car; and the breaks in the planks revealed their unsoundness. This apron had been used to keep the coal from falling through into the water, and also by the laborers in standing upon while engaged in unloading coal. It was covered over with coal dust, and had been In use three or four months, so that, if any defect existed in its make or material, it was not apparent Defendant contends that plaintiff, notwithstanding its negligence, cannot recover, for that Intestate was negligent in voluntarily putting himself in a drunken condition, and while so drunk and unfitted undertook to do the work, and in doing so fell off, and that his drunken condition was the immediate or proximate causeof his death; and his negligence, coexisting with defendant's, defeats a recovery. The evidence as to intestate's general condition, as well as that relating to his condition on the morning of the accident, is very conflicting. That introduced by plaintiff tends to show that he was a sober, energetic, industrious, able-bodied laborer, and good provider for his family, and that he was sober at the time he went to the car to unload it; while that of defendant tends to show that he was a barroom loafer, rarely ever sober, a chronic drunkard, and was so drunk when he started to the car, 15 or 30 minutes before he was found drowned, that he could not walk straight, but staggered as he went along; that he took a "short" in Dudley's bar, and went out, and then came back and took another "short, " and after taking the second one his son treated him to another; that he bought a half pint of whisky in Simmons' bar, and drank about half of it, and put the balance in a bottle.

The second exception (which also covered exceptions 4, 5, 8, and 14) is to the exclusion of evidence. Plaintiff proposed to ask the witness, "If this plank of the apron had been sound, and not cedar-hearted or rotten, could a man of Cogdell's weight and size have stood on it with safety, and thrown off the lump coal, or fallen on it from the top of the car, without its breaking under him?" This question was directed to the inquiry as to the negligence of defendant company in...