Franck v. Hines

• Decision Date: 26 October 1921
• Docket Number: 284.
• Citation: 109 S.E. 21,182 N.C. 251
• Parties: FRANCK v. HINES, DIRECTOR GENERAL OF RAILROADS, ET AL.
• Court: North Carolina Supreme Court

109 S.E. 21

182 N.C. 251

FRANCK v. HINES, DIRECTOR GENERAL OF RAILROADS, ET AL.

No. 284.

Supreme Court of North Carolina

October 26, 1921

Appeal from Superior Court, Cumberland County; Daniels, Judge.

Action by W. H. Franck against Walker D. Hines, Director General of Railroads, and the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendants appeal. Reversed as to the railroad, and affirmed as to the Director General.

In a negligence case, court is not warranted in granting a motion for nonsuit simply because plaintiff's witnesses apparently contradict each other in their testimony; such conflict being a matter for the jury.

Civil action to recover damages for an alleged negligent injury to plaintiff while a passenger on defendants' "shuttle train," which was a mixed train composed of an engine and several cars and used in carrying workmen from the city of Fayetteville, N. C., to Camp Bragg and back, a distance of several miles.

There was evidence tending to show that on May 9, 1919, the plaintiff boarded the train in the city of Fayetteville while it was down near the water tank, some distance from the Norfolk-Southern station; that the coaches and platforms were at that time crowded with passengers; and that the plaintiff was standing on the step of the car, holding to the grabirons, when he was struck by a switch target as the train started with a sudden jerk. It was permissible for passengers to get on the train at the coal chute, the ice plant, the water tank, and they "would stop first at one place and then another," and, wherever they stopped, "people would crowd on the cars." There was also evidence tending to show that the switch target was only 6 1/2 feet from the center of the track.

On the other hand, there was evidence, elicited on cross-examination, tending to show that plaintiff undertook to get on the train while it was in motion and was struck by the switch stand in his effort to board the moving cars.

Upon the issues of negligence, contributory negligence, and damages being answered in favor of the plaintiff, and from a judgment rendered thereon, the defendants appealed.

Rose & Rose, of Fayetteville, for appellants.

Averitt & Blackwell and Bullard & Stringfield, all of Fayetteville for appellee.

STACY J.

Defendants rely chiefly upon their motion for judgment as of nonsuit and they contend that the case at bar falls squarely under the decision of ...