Cotton v. North Carolina R. Co

• Court: North Carolina Supreme Court
• Writing for the Court: WALKER
• Citation: Cotton v. North Carolina R. Co, 62 S.E. 1093, 149 N.C. 227 (N.C. 1908)
• Decision Date: 25 November 1908
• Parties: COTTON. v. NORTH CAROLINA R. CO.

62 S.E. 1093

149 N.C. 227

COTTON.

v.NORTH CAROLINA R. CO.

Supreme Court of North Carolina.

Nov. 25, 1908.

1. Trial (§ 165^*)—Question of Law or Fact —Motion to Dismiss.

Where a motion to dismiss an action is made under the statute, the evidence must be construed most favorably to the plaintiff, and every fact which it tends to prove, and which is an essential to the cause of action, must be taken as established.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 374; Dec. Dig. §> 165.*]

2. Master and Servant (§ 285*)—Injuries to Servant — Negligence — Question for Jury.

In an action for injuries to a servant by the collapse of a baggage truck, evidence held to require submission of defendant's negligence in failing to properly inspect the truck, etc., to the jury.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1029; Dec. Dig. § 285.*|

3. Master and Servant (§ 101)*—Injuries to Servant—Safe Place—Duty of Master.

While an employer does not guarantee his employés safety, he is bound to use reasonable care and prudence to provide a safe place for him to work in.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 172, 180-184, 192; Dec. Dig. § 101.*]

4. Master and Servant (§ 102*)—Injuries to Servant—Defective Appliances—Duty of Master.

A master performs his duty to furnish appliances reasonably fit and safe if, in the selection thereof, he uses that degree of care which a man of ordinary prudence would use in re-gard to his own safety, if he were supplying them for his personal use.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 173, 174; Dec. Dig. § 102.^2-*]

5. Master and Servant (§ 265*)—Injuries to Servant—Defective Appliances—Burden of Proof.

In order that a servant may recover for injuries through alleged defective appliances, the servant must show that the appliance furnished was defective at the time of the injury, that the master knew of the defect, or was negligent in not discovering it and in making needed repairs, and that the defect was the proximate cause of the injury.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 877-879, 888, 889; Dec. Dig. § 265.*]

6. Master and Servant (§ 124*)—Injuries to Servant—Inspection—Duty.

A master owes to a servant, required to use appliances furnished by the master liable to become out of repair, the duty to inspect and repair the same at reasonable intervals.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 235; Dec. Dig. § 124.*]

Appeal from Superior Court, Guilford County; Moore, J.

Action by Peter Cotton against the North Carolina Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This action was brought to recover damages for injuries alleged to have been caused by the defendant's negligence. The plaintiff, who on May 13, 1906, was in the employ of the defendant, was ordered by George W. Vernon, the baggage agent at Greensboro, N. G, to carry some trunks from the northbound train No. 34, which had just arrived, to the east-bound train No. 112. Vernon told him to make haste, as the east-bound train was about to leave. Plaintiff and Will Suggs started with the truck, which weighed 1, 000 pounds and was loaded with trunks. He was pulling with his back towards the trunks, and Suggs' was pushing the truck. In going from one train to the other they had to pass around another truck. Will Suggs testified: "When we went around [the other truck], he was guiding the truck, and I was pushing. It was heavily loaded. When he turned around he ran the off wheel of the truck over the rail, and as he turned the wheel came off and the truck caught his foot. That is the way it happened. The wheel that fell off the truck had crossed the iron track—the right wheel. It was going right straight across it, and did not run in any groove. It was right level there. It was night, but the lights were around there. I said a minute ago that, In running around the other truck, the wheel went on the outside of the rail. There is no flange to the wheel. The rail is higher than the inside of the track, but is about level with the floor. In between the floor in the center of the track and the rail there is a groove, so that, in coming around from the inside, the wheel would have to pass over that groove and against the rail. The wheel went straight across the track; did not run down the track." The plaintiff testified that the wheel fell off the spindle when the truck struck the south-bound track. George W. Vernon, a witness for the defendant, testified: "I made an examination of the wheel right then and there. The platform is so built up there that the outside is up level and smooth with the top of the rail. On the inside is a space of about three inches. The spindle had fallen on the platform a few inches from the rail, and the wheel had fallen on the spindle. I took the wheel off the spindle and examined it. The pin was in the spindle, but had been bent outwards. Both ends of the pin were bent down flat to the spindle, and the wheel had drawn off over the pin, the wheel coming over both the pin and the spindle. The pin was not broken; it was simply bent. The pin was a little worn. The truck had been used some time. There was no wear on the spindle or pin that would injure the use of the truck that I could observe. I found the spindle lying down near the groove in the track, and the wheel over the spindle, and the pin and spindle in the condition I have described. I didn't see the wheel when it came off. I could not tell how long the pin had been in use, but it was somewhat worn. I could not tell how long the truck had been in use, but it had been used for some time. It would be impossible for me to tell, as we are always getting in new trucks. I could not tell the length of time it had been in use; could not say whether it had been in use three years; might have been, and it might have been less. Could not tell whether we had trucks that had been in use four or five years." There was evidence tending to show that the plaintiff was struck by the iron bar of the truck and also by one of the trunks which fell from the truck. At the close of the evidence the defendant moved to nonsuit the plaintiff. The motion having been refused, the defendant excepted. There was a verdict for the plaintiff, and, judgment having been entered thereon, the defendant appealed.

John A. Barringer, for appellant.

Wilson & Ferguson, for appellee.

WALKER, J. (after stating the facts as above). Where a motion to dismiss an action is made under the statute, the evidence must be construed in the view most favorable to the plaintiff, and every fact which it tends to prove, and which is an essential ingredient of the cause of action, must be taken as established, as the jury, if the case had been submitted to them, might have found those facts from the testimony. Brittain v. Wes-tall, 135 N. C. 492, 47 S. E. 616. Applying this rule, we think there was evidence in the case proper for the consideration of the jury upon the question of negligence. The dutyof the employer to his employé is thus stated in Marks v. Cotton Mills, 135 N. C. 290, 47 S. E. 433: "The employer does not guarantee the safety of his employe. He is not bound to furnish him an absolutely safe place to work in, but is required simply to use reasonable care and prudence in providing such a place. He is not bound to furnish the best known machinery, implements, and appliances, but only such as are reasonably fit and safe and as are in general use. He meets the requirements of the law if, in the selection of machinery and appliances, he uses that degree of care which a man of ordinary prudence would use, having regard to his own safety, if he were supplying them for his own personal use. It is culpable negligence which makes the employer liable, not a mere error of judgment. We believe this is substantially the rule which has been recognized as the correct one, and recommended...