Fitzgerald v. Southern Ry. Co

• Decision Date: 25 May 1906
• Citation: 141 N.C. 530,54 S.E. 391
• Court: North Carolina Supreme Court
• Parties: FITZGERALD. v. SOUTHERN RY. CO.

54 S.E. 391

141 N.C. 530

FITZGERALD.

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

May 25, 1906.

1. Master and Servant—Injuries to Servant—Fellow Servants.

Under the fellow servant act (Priv. Acts 1897, p. 83, c. 56), which operates on all employes of railroad companies, whether in superior, equal, or subordinate positions, if the plaintiff, a hostler of the defendant, was injured as the proximate consequence of the negligence of his helpers in shoveling coal from a car into a tender, the defendant is responsible.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 479, 493.]

2. Same—Negligence—Evidence.

Direct evidence of negligence is not required, but the same may be inferred from acts and attendant circumstances; and if the facts proved establish the more reasonable probability that the defendant has been guilty of actionable negligence, the case cannot be withdrawn from the jury, though the possibility of accident may arise on the evidence.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 1060.]

3. Same.

In an action for injuries to an employs of a railroad from the falling of a piece of coal which his helpers were transferring from a coal car to a tender, it would be a negligent act for one of the helpers to undertake to throw a lump of coal weighing 100 pounds across the space, when he must have known the chances were much against his success, and where a failure might cause death, or serious injury to his co-employé, who he knew was working near.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 881.]

4. Same—Res Ipsa Loquitur.

The doctrine of res ipsa loquitur is not confined to cases of the failure of some mechanical appliance or contrivance or machine, which fails in some unusual and unexpected manner to do its work properly.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 881.]

5. Same.

When a thing which causes injury is known to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use the proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 881.]

6. Same.

Where a hostler of a railroad company was occupied with his duties between a coalcar and a tender, and his helpers were shoveling coal from the car to the tender and knew he was working around the tender, and he was injured by a 100 pound lump of coal falling on him, the doctrine of res ipsa loquitur applies.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 881.]

Brown, J., dissenting.

Appeal from Superior Court, Guilford County; Ward, Judge.

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

Civil action to recover damages for an injury caused by alleged negligence on the part of defendant, tried before Ward, judge, and a jury at October term, 1905, of Guilford superior court. No contributory negligence was alleged in the answer, and the cause was submitted to the jury on two issues: (1) As to the defendant's negligence causing the injury; (2) as to damages. There was evidence tending to show that "plaintiff on the 11th day of July, 1904, at the time of the injury, was in the employment of the defendant as a hostler in the yard of the defendant at Winston, N. C., and it was his duty with his helpers, who were employed by the defendant, when any engine came in, to take charge of and cool it, clean out the fire, and put it away in its proper place. On the morning of the injury the engine had been moved up over the pit in which the fire was to be dumped along side of the coal car from which the coal was to be thrown into the tender. That this coal car was standing on a track parallel with the one on which the engine was standing, and, between the parallel tracks there was an open space, across which the coal was to be thrown. The engine had been standing with fire in it all night, and the fire had to be cleared from the engine and the water turned on the fire in the pit while the coaling was in progress. After the fire had been cleared from the engine and thrown in the pit, on the occasion of the injury, the water was turned through the hose which was attached to a hydrant, when the hose blew out so that the hose had to be fastened on again, and there was nobody to do this but the plaintiff. He was the only man to do this work around that point. The hydrant was in the open space between the coal car and the rear of the tender, and when the hose blew off, which had been insecurely fastened by the tankman to the hydrant, the plaintiff squatted down by the tank with the back of his head towards the tender and was attempting to fasten the hose on the hydrant. He was 2 1/2 feet from the tender and about 8 feet from where the negroes were at work throwing coal straight across into the place in the front part of the tender for receiving and holding it.

The plaintiff, in his own behalf, testified that the lump of coal weighed about 100 pounds and evidently described the size and shape of the coal by indicating the same with his hands. He was asked (p. 11, Record) "How large was the coal?" and replied: "Of course, I could not tell the weight then, but the lump seemed to be about that long, and about that large around. Kind of an odd shape; seemed to be about a 100-pound lump, something like that." The court, on stating this part of the testimony to the jury said: "As I got his testimony down, it was a large piece of coal, about 20 by 20 inches and a 100 pound lump.'' There was no objection to this part of the statement of the court, and we take it that, without question, the witness, when he said, "About that long and that large around, " indicated to the court and jury the size of the lump by the position of his hands or some other objective measurement. On his examination in chief, this is stated, that one of the negroes threw the lump of coal that struck the witness. On cross-examination he stated that he did not know which one of the negroes threw the coal, because he could not see it leave their hands upon the car while he was down there discharging his duty, and. for the same reason he did not know whether it went up on the tender and rolled off or struck the tender and fell off. In answer to a question by the defendant, the witness stated: "Q. Do you know who threw it? A. No; I do not know which one. threw it, because I could not see it leave their hands upon the car, while I was there discharging my duty. Q. You don't know whether it came directly from the shovel onto your head or whether it went up on the tender and rolled off? A. No. Q. Nor whether it struck the tender and fell off? A. That is the information I had." The witness further testified that the coal should, have been thrown into its bed or basin in the forward part of the tender. The negroes were engaged in throwing coal in the front end of the tender and did not have to throw the coal on the back end at all. That he did not know whether the boys saw him at the time. That they could have done so. He was at the rear end of the tender and on their side, but that they knew he had to work all around them while they were coaling. The plaintiff was permanently injured and disabled. There was a motion for nonsuit which was overruled, and the defendant excepted. The court, after defining at length "negligence" and "proximate cause, " charged the jury, in substance, that if defendant through its agents failed to exercise proper care, that care which a prudent man should use under the circumstances, in throwing the coal from the car to the tender, and such negligence was the proximate cause of the plaintiff's injuries, they should answer the first issue "yes." The charge also put the burden of the issue on the plaintiff. Defendant excepted. Verdict for plaintiff, and from judgment thereon defendant appealed.

King & Kimball, for appellant.

John A. Barringer, for appellee.

HOKE, J. (after stating the facts). The statute known as the "Fellow Servant Act, " published as chapter 56, p. 83, Priv. Laws 1897, where the same applies, has the effect of making all co-employés of railroad companies agents and vice principals of the company so far as fixing the company with responsibility for their negligence is concerned. While commonly spoken of as the "Fellow Servant Act, " it is entitled "An act to prescribe the liability of railroads in certain cases, " and it operates on all employés of the company, whether in superior, equal, or subordinate positions. The two hands, therefore, who were shoveling coal, while they were there as "helpers" to the plaintiff, were the agents of the defendant, and, contributory negligence on the part of the plaintiff not being proved or even alleged, if the plaintiff was injured as the proximate cause of their negligence, the company is responsible. We do not understand that the defendant controverts, or desires to controvert this position, but rests its defense on the ground that there is no evidence offered which requires or per-mits that the plaintiff's cause he considered by the jury, and this on the idea, chiefly, that, so far as the testimony discloses, it is just as probable that the injury was the result of an accident for which the defendant Is in no way responsible, or for negligence which may be imputed to the defendant as an actionable wrong. While this may be the law under given circumstances, we think that the principle has no place in application to the facts of the case before us.

It is very generally held that direct evidence of negligence is not required, but the same may be inferred from facts and attendant circumstances, and it is well established that, if the facts...