Hemphill v. Buck Creek Lumber Co

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK
• Citation: Hemphill v. Buck Creek Lumber Co, 54 S.E. 420, 141 N.C. 487 (N.C. 1906)
• Decision Date: 22 May 1906
• Parties: HEMPHILL. v. BUCK CREEK LUMBER CO.

54 S.E. 420

141 N.C. 487

HEMPHILL.

v.BUCK CREEK LUMBER CO.

Supreme Court of North Carolina.

May 22, 1906.

1. Master and Servant—Injuries to Servant—Presumption of Negligence.

Where a brakeman is injured because of the derailment of a car on which he is riding, a presumption of negligence on the part of the master arises.

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

2. Same—Assumption of Risk—Railroads— Application of Statute—Logging Road.

Revisal 1905, § 2646, depriving any railroad operating in this state of the defense of assumption of risk as to any defect in the machinery, ways, or appliances of the company, applies to logging railroads.

Appeal from Superior Court, Buncombe County, W. R. Allen, Judge.

Action by A. W. Hemphill against Buck Creek Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Busbee & Busbee and Justice & Pless, for appellant.

Locke Craig and P. H. Winston, for appellee.

CLARK, C. J. The plaintiff was injured in the derailment and wreck of a train of cars loaded with logs and tan bark, which was running backward at a speed of 8 to 15 miles an hour. He was a brakeman and in the discharge of his duty on the front end of the car farthest from the engine. This railroad was a lumber road, with iron rails, 4-feet gauge, and using steam locomotives. The plaintiff testified that the rims of the wheels of the car on which he was riding were not as wide as the rims of the wheels of the other cars, and hence that car was more liable to get off the track; that this happened often on the new part of the road, but not on the older part; that this car was not the same height as the car to which it was coupled, which necessitated the use of a bent link; that the only bent link he could get was crooked, and this made it necessary for the brakeman to be on this front car of the backing train to watch it, as it might break and turn the car loose. It was not controverted that at the place the derailment occurred the track was in bad condition, the cross-ties too rotten to hold the spikes and rails that the defendant's foreman had inspected and found this to be true before the wreck, but the plaintiff testified that he knew nothing of the condition of the track at that point; that the derailment occurred at a curve where the track had spread on account of the rotten cross-ties.

The court properly refused the defendant's prayer to instruct the jury that if they believed the evidence to answer the first issue (negligence) "No." "Where there is a collision or derailment, and in like cases, the presumption of negligence arises." Wright v. Railroad, 127 N. C. 229, 37 S. E. 221; Marcom v. Railroad. 126 N. C. 200, 35 S. E. 423; Kinney v. Railroad, 122 N. C. 961, 30 S. E. 313; Grant v. Railroad, 108 N. C. 470, 13 S. E. 209; 2 S. & R. Neg. § 516, and numerous cases there cited. The above was cited and approved in Stewart v. Railroad, 137 N. C. 689, 50 S. E. 312. There was, besides, evidence that both the car and the track were defective. The court also properly refused to charge the jury that if they believed the evidence to answer the second issue (contributory negligence) "Yes." The burden of this issue was upon the defendant, and, besides, the evidence was conflicting.

The defendant further insisted that the "fellow servant act" (Revisal 1905, § 2646), which deprives "any railroad operating in this state" of the defense of assumption of risk as to "any defect in the machinery, ways or appliances of the company" does not apply to lumber roads, and therefore its first prayer should have been given....