Holderfield v. Rummage Bros. Trucking Co.

• Decision Date: 22 November 1950
• Docket Number: No. 452,452
• Citation: 232 N.C. 623,61 S.E.2d 904
• Parties: HOLDERFIELD, v. RUMMAGE BROS. TRUCKING CO.
• Court: North Carolina Supreme Court

Page 904

61 S.E.2d 904

232 N.C. 623

HOLDERFIELD, v. RUMMAGE BROS. TRUCKING CO.

No. 452

Supreme Court of North Carolina.

Nov. 22, 1950

Douglass & McMillan, Raleigh, for plaintiff appellant.

Wm. G. Pittman, J. Elsie Webb, Rockingham, and Smith, Leach & Anderson, Raleigh, for defendant appellee.

BARNHILL, Justice.

There is ample evidence of the negligent operation of the truck to require the submission of appropriate issues to the jury. We may assume, therefore, that the court below concluded that the plaintiff was guilty of contributory negligence as a matter of law. It is upon this theory the cause is debated here.

Ordinarily, in actions founded on negligence, the mutual obligations of the parties are so apparent discussion thereof is not required. But here the 'duty' feature of negligence is determinative.

Negligence is a failure to perform some duty imposed by law. It may be the breach of the duty imposed by some statute designed and intended to protect life or property. In that event the tort feasor is liable for all damages which may naturally and proximately result from his wrong without regard to whether he could have foreseen such injurious result.

'Then we have the general duty of using due care and caution. ' Drum v. Miller, 135 N.C. 204, 47 S.E. 421, 423, 65 L.R.A. 890. The existing conditions or the relation of the parties creates this duty, the breach of which may give rise to a cause of action for damages. But there must be some circumstance which imposes the duty such as the relationship of master and servant, owner and invitee, or the contemporaneous use of the same highway by two or more persons. The surrounding circumstances or the relation of the parties must create the duty before there can be any breach thereof. Drum v. Miller, supra.

Actionable negligence is the breach of the duty of the party sought to be charged to exercise ordinary care for the safety of the plaintiff and others similarly situated, which proximately causes the injury alleged. Contributory negligence is the breach of the duty of the plaintiff to exercise due care for his own safety in respect of the occurrence about which he complains, and if his failure to exercise due care for his own safety is one of the proximate contributing causes of his injury, it will bar recovery. Otherwise, there is no real distinction between actionable negligence on the one hand and contributory negligence on the other. Foreseeability and proximate cause are essential elements of both.

Where an employee has the choice of two ways in which to do his work, one safe and the other dangerous, he owes his employer the duty of selecting the safe way. This principle of law is so well established it needs no citation of authority to sustain it.

Where, as here, a brakeman or trainman has selected an unsafe and dangerous place to ride, and injury results, some courts hold that, as between him and his employer, he is guilty of contributory negligence as a matter of law. Williams v. Monongahela Connecting R. Co., 223 Pa. 482, 72 A. 811, Chattanooga & S. R. Co. v. Myers, 112 Ga. 237, 37 S.E. 439; Martin v. Kansas City M. & B. R. Co., 77 Misc. 720, 27 So. 646; Warden v. Louisville & Nashville R. Co., 94 Ala. 277, 10 So. 276, 14 L.R.A. 552, and notes; Balt. & P. R. R. Co. v. Jones, 95 U.S. 439, 24 L.E.d. 506. Others hold that his conduct in selecting the dangerous way presents a question for the jury. Southern Ry. Co. v. Harrison, 119 Ala. 539, 24 So. 552, 43 L.R.A. 385; Illinois Cent. R. Co. v. Carter, 154 Ky. 373, 157 S.W. 719; Chicago & E. R. C3. v. Kiracofe, 48 Ind.App. 407, 95 N.E. 1117; Milbourne v. Arnold Electric Power & Station Co., 103 N.W. 821, 140 Mich. 316, 70 L.R.A. 600; Mo. Pac. Ry. Co. v. McCally, 41 Kan. 639, 655, 21 P. 574; El Dorado & B. R. Co. v. Whatley, 88 Ark. 20, 114 S. W. 234; Powers v. Boston & M. R. R., 175 Mass. 466, 56 N.E. 710.

The nearest approach to this particular phase of the question in our reports is Wimberley v. Atlantic Coast Line R. Co., 190 N.C. 444, 130 S.E. 116. There the cause was submitted to a jury. On appeal this decision was reversed on the ground there was no evidence of negligence on the part of the railroad. 273 U.S. 673, 47 S.Ct. 475, 71 L.Ed. 833. See also Biles v. Seaboard Air Line R. Co., 143 N.C. 78, 55 S.E. 512.

When the plaintiff took his seat on the pilot he may be said to have assumed the risks naturally incident to his exposed position, such as the risk of being thrown from the platform by the sudden starting, stopping, or other negligent operation, of the train. Whether, as between him and his employer, his negligence in assuming a place so obviously dangerous constitutes contributory negligence as a matter of law we need not now say, for this is not the question presented for decision.

Bearing in mind that, as applied here, contributory negligence is the breach of the duty, if any, to exercise ordinary care for his own safety which the plaintiff owed the defendant under the circumstances then existing, it cannot be said as a matter of law that he was guilty of such negligence as would necessarily bar recovery; that is, as between him and the defendant, his position on the train, voluntarily assumed, does not constitute contributory negligence as a matter of law under the circumstances here disclosed. To so hold would bar recovery in most, if not all, actions founded on negligence. If the plaintiff had been elsewhere, or at a safer place, rather than at the scene of the accident, he would have received no injury. This is not the proper basis for decision. We start with the fact that he had voluntarily taken a seat on the pilot platform of the train and, while in that position, came in the line of defendant's operation of its truck. Was his mere presence there one of the proximate causes of his injury? This is the crux of the case.

Plaintiff owed no duty to the defendant or its truck driver. It was no concern of theirs whether he rode on the pilot platform or in the cab or in the caboose. They had no right to direct where he should ride or to complain that he chose a dangerous place when a safe place was available to him. However his act in assuming a dangerous place to ride may be labeled as between him and his employer, the jury may find here that the conduct of defendant's driver constitutes an independent, intervening act of negligence and that the position of plaintiff on the train was merely a condition or circumstance of the accident rather than one of the proximate causes thereof. Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88; Kryger v. Panaszy, 123 Conn. 353, 195 A. 795; Montambault v. Waterbury & Milldale T. Co., 98 Conn. 584, 120 A. 145; Smithwick v. Hall & Upson Co., 59 Conn. 261, 21 A. 924, 12 L.R.A. 279.

Plaintiff was required to foresee those results which might naturally and proximately flow from his act in selecting a dangerous seat on the train. Wood v. Carolina Telephone Co., 228 N.C. 605, 46 S.E.2d 717, 3 A.L.R.2d 1; Lee v Carolina Upholstery Co., 227 N.C. 88, 40 S.E.2d 688; Boyette v. Atlantic Coast Line R. Co., 227 N.C. 406, 42 S.E.2d 462; Ellis v. Sinclair Refining Co., 214 N.C. 388, 199 S.E. 403.

He was not under the duty to anticipate or foresee the negligent conduct of defendan's servant and its attendant results. Instead, he had the right to assume that defendant's driver and other motorists approaching the railroad at a grade crossing would exercise due care and obey the rules of the road....