Hamilton v. Hines Bros. Lumber Co.
| Decision Date | 16 October 1912 |
| Citation | 75 S.E. 1087,160 N.C. 47 |
| Parties | HAMILTON v. HINES BROS. LUMBER CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Lenoir County; Peebles, Judge.
Action by H. K. Hamilton, administrator, against the Hines Bros Lumber Company. From judgment for defendant, plaintiff appeals. Affirmed.
In an action for death of a servant, an instruction is objectionable which is predicated upon the theory that the intestate was killed while uncoupling a car, while the contributory negligence alleged and relied on was that the uncoupling had been finished, and that he negligently stood on the bolster, when it was unnecessary to do so.
This is the second appeal by the plaintiff in this cause; the first being from a judgment of nonsuit at the close of the plaintiff's evidence, and is reported in 156 N.C. 519, 72 S.E. 588. This appeal is from the jury's verdict; the usual issues of negligence, contributory negligence, and amount of damage being submitted to the jury without objection.
The defendant lumber company maintains certain logging or tram roads, operated exclusively for the purpose of bringing its logs from its logging woods out to its main line. The tramroad upon which the accident occurred for which this action is brought connects with its main line of road, and runs from it out into the timber woods. The train consisted of 12 or 13 log cars, 2 of which, about midway the train were loaded with feedstuff for the camp. The object was to place the empties upon the spur, and thus connect all the empties, and then proceed to the camp with the engine and loaded cars alone. The log cars in use by the defendant were such as are in general and common use by lumber companies. They were skeleton log cars, with four stringers, about six by six, six inches apart, running lengthwise down the middle of the cars, across which there was a bolster at either end of the car about three feet from the coupling. The cars were coupled together with link and pin, and, in addition to the bolsters at either end of the car, there was a beam about four by six inches across the car between the bolster and the coupling. The bolsters are about twelve inches in width, and extend in length over beyond the wheels. The top of the box of the wheel (called the journal box) is of a flat surface (about eight inches square), and is about two feet from the bolster, and could be used in stepping on and off the car.
The plaintiff's intestate was employed by defendant as fireman on Friday before he was killed. It was a part of his duty to couple and uncouple, and to do the switching. The work desired of the intestate upon the day of the injury was to uncouple certain cars while the whole train was backing then to get off the car after so uncoupling, go to the switch below, getting there in time to change the switch (after the cars he had uncoupled had gone into the switch) before the next cars, which were to be uncoupled, had reached the switch, so that the latter cars cut off by the witness Emmerson would go straight down the track. Then the switch was again to be changed to let the other cars go therein. The two loaded cars, about the middle of the train, were to go straight down the track, and the empties in front of and behind the two loaded cars were to be placed in the spur. There was no standard or arms on the car from which the intestate was to alight. The engineer was backing at a rate of somewhere from five to eight miles per hour, and it was a slight downgrade, and, when the cars were uncoupled, they separated and ran down the track of their own motion. It is undisputed that the plaintiff was ordered to do this work, and it is not denied that the method set out was the method adopted and used by the defendant.
It is admitted that there are two ways that this shifting of cars could be accomplished, one by the method above set out--that is, not stopping the motion of the train-- and the other by backing the cars into the spur, stopping, uncoupling, then moving out, backing straight down the track, stopping, uncoupling the cars desired to be left on the main track, then moving up and backing the other cars into the spur, and stopping, uncoupling, and leaving them. Plaintiff's witnesses testify that the loss of time by the use of the latter method is from three to five minutes, while the defendant's witnesses estimate as much as fifteen minutes' loss thereby. It is not disputed that plaintiff had to go out from the engine over the moving skeleton log cars on the stringers, sit down on the beam and pull out the pin, so as to uncouple, then get off the car in order to proceed with his duties and change and rechange the switch. The intestate fell from the car and was killed by the car running over him. The plaintiff contended that he fell while pulling out the pin, and the defendant contended that he had finished uncoupling the cars, and that he unnecessarily stood up on the bolster and fell from that position. Evidence was introduced to sustain both contentions.
The jury returned the following verdict:
Judgment was rendered upon the verdict in favor of the defendant, and the plaintiff appealed.
Geo. V. Cowper and Y. T. Ormond, both of Kinston, for appellant.
Loftin & Dawson and Rouse & Land, all of Kinston, for appellee.
Admitting for the purposes of this appeal, that the defendant was negligent, the...
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