Cook v. Southern Ry. Co

• Decision Date: 28 May 1901
• Citation: 38 S.E. 925,128 N.C. 333
• Court: North Carolina Supreme Court
• Parties: COOK . v. SOUTHERN RY. CO.

38 S.E. 925

128 N.C. 333

COOK .

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

May 28, 1901.

CARRIERS—TRESPASSERS—WRONGFUL EJECTION—LIABILITY—AUTHORITY OF BRAKE-MAN — CONFLICTING EVIDENCE — QUESTION FOR JURY.

1. Plaintiff was stealing a ride beneath a freight car, end while the train was moving about five miles an hour the brakeman threw a rock at him and cursed him and told him to get off, and the flagman said, "Give it to him, " and plaintiff was injured by jumping off. Held, that the company was liable for the wrongful manner in which the ejection was accomplished.

2. Where plaintiff, who was stealing a ride, was injured by jumping from a moving train because he was assaulted by the brakeman and flagman, the contention that the company was not liable, because the conductor was the only one authorized to eject a person from a train, cannot be sustained, since, if the conductor had sole authority, it was his duty to restrain those under him from assaulting even a trespasser.

3. Where the testimony as to whether plaintiff was injured by jumping from a train was conflicting, the question was properly submitted to the jury.

4. Where plaintiff sued for injuries arising from a wrongful ejection from a train, and defendant offered evidence denying that plaintiff was forced to get off, the question was properly submitted to the jury.

5. Where plaintiff was stealing a ride beneath a freight car, and was injured by jumping off while the train was in motion because the brakeman threw a rock at him, it was proper to charge that defendant owed plaintiff such care as a person of ordinary prudence and skill would usually exercise under the same or similar circumstances.

Appeal from superior court, Burke county; Shaw, Judge.

Action by J. W. Cook against the Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Geo. F. Bason and A. B. Andrews, Jr., for appellant.

Avery & Avery and Avery & Ervin, for appellee.

CLARK, J. This case is on all fours with Pierce v. Railroad Co., 124 N. C. 83, 32 S. E. 399, 44 L. R. A. 316. It was there humanely held that a "trespasser's wrongful act in getting on a car does not justify making him get off in a manner calculated to kill or cripple him"; also that "a railroad company is responsible for injury caused by the wrongful act of its employe, while acting in the general scope of his employment, whether such act is willful, wanton, and malicious, or merely negligent." That case cites numerous authorities (pages 93, 94, 124 N. Cpage 402, 32 S. E., and page 317, 44 L. R. A.) for instances where the carrier was held liable for a servant "employed to sweep up the car" kicking a boy off a moving train, the boy falling under the train and being killed (Railroad Co. v. Hack, 66 111. 238); or a brakeman doing the same (Railroad Co. v. Kelly, 36 Kan. 655, 14 Pac. 172); and similar cases. The principle underlying those cases is stated to be, "The proximate cause of injury is not the trespasser's wrongfully getting on the cars, but the tortious manner in which the servant makes him get off." In that case (Pierce v. Railroad Co., supra) the carrier was held liable because a brakeman, either by throwing a lump of coal which frightened or struck a boy who was stealing a ride on the train, or by merely ordering the boy off, made him get off a moving train so that he was killed. In the present case the plaintiff was likewise stealing a ride. Instead of stopping the train to make him get off, or waiting until the train got to a station, it was in evidence that while the train was going four or five miles an hour the flagman (a white man) and a colored brakeman got off the train, cursed the plaintiff and told him to get off, the brakeman threw a rock and hit the rod under the car, on which the plaintiff was resting, and the flagman said, "Give it to him." In consequence of this assault and the threats ac-...