Hayes v. Atlanta & C. Air Line Ry. Co.

• Decision Date: 28 November 1905
• Parties: HAYES v. ATLANTA & C. AIR LINE RY. CO.
• Court: North Carolina Supreme Court

52 S.E. 416

140 N.C. 131

HAYES v. ATLANTA & C. AIR LINE RY. CO.

Supreme Court of North Carolina

November 28, 1905

Appeal from Superior Court, Mecklenburg County; O. H. Allen, Judge.

Action by Samuel Hayes against the Atlanta & Charlotte Air Line Railway Company. Plaintiff took a nonsuit, and appealed. Remanded.

In an action in which plaintiff alleged his injury was caused by defendant's negligence, and specified various acts or omissions as constituting the negligence, each act not being pleaded as the basis of a distinct cause of action, but as singly, or in connection with the others, tending to establish the one cause of action for the negligence resulting in the injury, the court at the close of the testimony intimated it would charge that there was not sufficient evidence as to the negligence of defendant in failing to use a switch engine, but that it would submit only the evidence as to defendant's negligence in respect to the flange on the engine used and the questions of contributory negligence and proximate cause, whereupon plaintiff took a nonsuit, and appealed. Held, that the nonsuit was unnecessary at that time, and the appeal therefor could not be dismissed, but the cause would be remanded, with direction to set aside the nonsuit and proceed with the case.

Plaintiff brought this action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. He was a switchman in defendant's employ, and belonged to the crew in charge of the "switch local" between Gastonia and Gaffney, which places were about 30 miles apart. Plaintiff complains that defendant used a road or line engine, when it should have had a switch engine for that kind of work, and that the road engine was in itself unfit for such service, and, lastly, that it was out of order, in that it had a defective flange on the lower rim of the pilot which was used by switchmen as a step to get on and off the engine when in motion and while they were engaged in switching; that plaintiff while in the performance of his duties stepped upon this flange, as it was his custom to do and it gave way, causing him to be knocked down by the pilot and dragged some distance, when the wheel of the engine ran over his leg and crushed it. Plaintiff further alleged that he rode on the pilot with the knowledge and consent of defendant's employés, under whose orders, as his superiors, he worked. Defendant denies these allegations and avers that plaintiff was not entitled to have a switch engine for such work as he was doing, and that it was not required in such service and could not safely be used, as the train moved from place to place along a considerable stretch of the main track of its railway, and the switching was therefore not done in a regular switchyard where such engines are commonly used; that a road engine was proper and sufficient for the purpose; and that the engine in question was in good condition and supplied with a step and a staff behind the pilot, as good as a footboard and handhold, where plaintiff could get on and off the engine, and where he could stand and hold on with perfect safety. Defendant specially denies that the flange was not in good condition and avers that it was safe and sound, and that plaintiff's injuries were caused by his own negligence. Plaintiff denied that there was any step behind the pilot. Testimony was introduced by each of the parties to sustain their respective contentions. At the close of the testimony, the court intimated that it...