Hines v. Atlantic Coast Line R. Co.

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK, C.J.
• Citation: Hines v. Atlantic Coast Line R. Co., 116 S.E. 175, 185 N.C. 72 (N.C. 1923)
• Decision Date: 07 March 1923
• Docket Number: 147.
• Parties: HINES v. ATLANTIC COAST LINE R. CO.

116 S.E. 175

185 N.C. 72

HINES v. ATLANTIC COAST LINE R. CO.

No. 147.

Supreme Court of North Carolina

March 7, 1923

Appeal from Superior Court, Pitt County; Calvert, Judge.

Action by S.E. Hines against the Atlantic Coast Line Railroad Company. Judgment of nonsuit, and plaintiff appeals. Reversed.

Assumption of risk is a matter of defense to be passed on by the jury who are to say whether an employee voluntarily assumed it; it not being sufficient to show merely that he worked on knowing the danger.

This is an action by the plaintiff for injuries sustained by him in the course of his employment. The plaintiff was the agent of the defendant company at Oak City, N. C., on its line between Parmelee and Weldon. His duties required him to sell tickets receive and deliver freight, and handle baggage. In January 1913, the plaintiff alleges and testified that in lifting a piece of baggage from the ground to the train he sustained a slight rupture, and immediately requested the defendant's superintendent to supply him with a baggage truck. The truck was not sent, and, though the plaintiff repeatedly asked for the same, and was assured that it would be sent, it was not supplied.

In June, 1916, as the complaint alleges, and plaintiff testified, a piece of baggage was put off at Oak City and remained some hours. The baggage was checked with a plain check, nothing to indicate that it was of excessive weight. On the same afternoon, when the train for Greenville was coming into the station, the owner of the baggage applied for a check to Greenville. The check was issued and the plaintiff immediately went to the train and attempted to put it on. The baggage was so heavy that when plaintiff lifted it, as he testified, it tore him loose in the lower part of the abdomen. He fell to the ground, and was severely injured, from which injuries he has never recovered.

The baggage in question weighed 250 pounds, being 100 pounds overweight, and the plaintiff testified that there was no check on its arrival there which showed it was excess baggage, or he would not have attempted to lift it. On account of the injuries sustained, the plaintiff was compelled to go to a hospital for treatment, and by reason of his injuries he was obliged a short time thereafter to give up his job, and since that time has not been able to do any heavy work of any kind, and is advised that he may suffer from strangulated hernia at any moment.

The plaintiff was corroborated as to these circumstances by several witnesses. At the close of his testimony the court granted defendant's motion to nonsuit. The plaintiff excepted and appealed.

S. J Everett and Albion Dunn, both of Greenville, for appellant.

Skinner & Whedbee, of Greenville, for appellee.

CLARK C.J.

According to the allegations and the evidence, this was an intrastate transaction, the baggage of the passenger being checked from Oak City to Greenville, N.C. The evidence for the plaintiff on this motion to nonsuit must be taken in the light most favorable to him, and presents two causes of action: The negligent failure of defendant company to supply the plaintiff with the necessary equipment with which to perform the duties of his position although he had asked for such equipment and been promised the same; and the negligent failure of the defendant company to indicate to the plaintiff that the baggage which had been brought by it from another point and delivered at Oak City was of excessive weight.

The evidence that the plaintiff had been injured by lifting a piece of baggage previously in 1913, and had complained to the superintendent, repeatedly asking for a truck, which the superintendent often promised to send, but did not, was evidence of negligence sufficient to go to the jury. Pigford v. Railroad, 160 N.C. 93, 75 S.E. 860, 44 L R. A. (N. S.) 865. That he continued in...