Le Gwin v. Atlantic Coast Line R. Co.
| Decision Date | 08 December 1915 |
| Docket Number | 274. |
| Citation | 87 S.E. 99,170 N.C. 359 |
| Parties | LE GWIN v. ATLANTIC COAST LINE R. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, New Hanover County; Whedbee, Judge.
Action by F. B. Le Gwin against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
The action was to recover damages for physical injury to plaintiff, caused by the alleged negligence of defendant company in backing certain cars onto a siding and against other stationary cars thereon without giving adequate warning and by reason of which plaintiff received the injuries complained of. Defendant answered, denying any negligence on its part, and pleaded contributory negligence on part of plaintiff as the proximate cause of the injury. On the ordinary issues in these cases, negligence and contributory negligence, there was verdict for plaintiff. Judgment on the verdict, and defendant excepted and appealed.
Plaintiff employed in a mill yard, who passed between cars on a switch track which were separated by the railroad company for the convenience of such persons, held not guilty of contributory negligence, where a train was negligently backed against such cars, though he might have gone around the cars by a slight detour.
Davis & Davis, of Wilmington, for appellant.
E. K Bryan, of Wilmington, for appellee.
There were facts in evidence on part of plaintiff tending to show that there was a spur track from defendant road running into the yards of the Chadbourn Lumber Company, in the southern part of the city of Wilmington, this track leaving main line and curving sharply as it entered the yard from the east that the shops, planing mill, etc., were on south side of the track, six or eight feet therefrom, and the mill yard extended across the track for purposes of its work; that, in leaving cars, etc., on the yard at and near the shops, it was the custom to leave a space between them so that the hands having occasion to do so could cross between the cars from one part of the yard to the other; that south of the track and between the shops and the main line, where the spur track left it, there were piles of lumber, obstructing the view towards the main line; that at the time of this occurrence there were three cars stationary on the spur at or near the front of the shops, the first towards the east being an empty box car, then an unloaded flat car, and last a loaded box car, the spaces there having been left, as stated, for the convenience of the hands in passing from one part of the yard to the other; that about 5:30 p. m. on the afternoon of March 13, 1913, plaintiff, at work on the north side of the track, had occasion to speak to the foreman in the shop, and crossed the spur track for the purpose, and, as he was returning, having looked for the approach of a train or engine and listened as far as he could when the shops and planing mills were in operation, and there being nothing to indicate the approach of an engine, and no one of a train crew in evidence, he started back across the track, and as he did so, and just as he was between the drawheads or coupling of the flat and empty box car, an engine of defendant company, with two or more cars ahead, backed these cars against the empty car, crushing the plaintiff, and causing permanent, serious, and painful injuries; that this was done without adequate warning on the part of the engineer, and without having any one on the cars as they approached or on the yard in a position to warn plaintiff or other hands who might be crossing the track...
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