Horton v. Seaboard Air Line Ry.

• Decision Date: 12 May 1915
• Docket Number: 257.
• Citation: 85 S.E. 218,169 N.C. 108
• Parties: HORTON v. SEABOARD AIR LINE RY.
• Court: North Carolina Supreme Court

85 S.E. 218

169 N.C. 108

HORTON v. SEABOARD AIR LINE RY.

No. 257.

Supreme Court of North Carolina

May 12, 1915

Appeal from Superior Court, Wake County; Whedbee, Judge.

Action by James T. Horton against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant appeals. No error.

Brown J., dissenting.

The granting of new trial for newly discovered evidence is within the discretion of the court, although the judge stated that the new testimony was cumulative.

Murray Allen, of Raleigh, for appellant.

Douglass & Douglass, R. N. Simms, and W. B. Snow, all of Raleigh, for appellee.

CLARK C.J.

This is an action for personal injuries suffered by the plaintiff while an engineer in defendant's employment, by the explosion of a water glass on the defendant's locomotive, impairing the sight of the plaintiff's right eye. The case was first here 157 N.C. 146, 72 S.E. 958, when a new trial was awarded. It was here again 162 N.C. 424, 78 S.E. 494, and upon writ of error it was then heard in the United States Supreme Court, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, and, the writ being sustained, the case was remanded to the lower court, where, as we think upon a review of the record, it has been tried strictly in conformity with that opinion of the United States Supreme Court.

The argument of the defendant seeks to put the plaintiff in this predicament: That, if the likelihood of injury from an explosion of the glass was not apparent, then the defendant was not guilty of negligence. But, on the other hand, if such defect was apparent, then the plaintiff assumed the risk and is equally barred from recovering damages. But that was not the ruling of the United States Supreme Court, as we understand it. That court held:

"When the employé knows of a defect in the appliances used by him and appreciates the resulting danger and continues in the employment without objection, or without obtaining from the employer an assurance of reparation, he assumes the risk even though it may arise from the employer's breach of duty. But, where there is promise of reparation by the employer, the continuing on duty by the employé does not amount to assumption of risk, unless the danger be so imminent that no ordinarily prudent man would rely on such promise."

The plaintiff testified that he notified the proper official that the guard glass was gone and asked for one, and the reply was that the road did not have any in stock, but had them in Portsmouth, and the company would send there and get one, and said that the plaintiff would "have to run the engine like she was."

There was evidence from which the jury could find that, while the absence of the guard glass was a defect causing danger to the plaintiff, and which amounted to negligence on the part of the defendant, yet it was not such an imminent danger as would justify excusing the defendant, if the plaintiff remained on service after reporting the defect and receiving assurance that it would be repaired. The court properly told the jury that:

"Risks not naturally incident to the occupation may arise out of the failure of the employer, the defendant in this case, to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These latter risks the employé is not treated as assuming until he becomes aware of the defect or disrepair or of the risk arising from it unless the defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them."

The court further charged:

"When an employé does know of the defect and appreciates the risk that is attributable to it, then if he continues in the employment without objection, or without obtaining from his employer or representative the assurance that the defect will be remedied, the employé assumes the risk, even though it arises out of the master's breach of duty. If, however, there be a promise of reparation, even during such time as may be reasonably required for its performance or until the particular time specified in such performance, the employé relying upon the promise does not assume the risk unless at least the danger be so imminent that no ordinarily prudent man would rely upon such promise."

The defendant excepted to the above instructions, but we think it is strictly in accordance with the decision of the United States Supreme Court in this case, and that upon the evidence the jury were authorized to find, as they did in response to the second issue, that the plaintiff did not assume the risk of injury.

There are numerous other exceptions, but this case has been so fully considered in every aspect of the law, and the facts have been so fully set forth on the two former appeals in this court and also upon consideration of the writ of error in the United States Supreme Court, that it would be work of supererogation to go over the same ground a fourth time. The very careful and learned judge who tried this case below seems to have fully comprehended, and to have closely and carefully followed, the decision of the United States Supreme Court upon the points on which that court gave a new trial, and we find no error in his rulings.

The only other exception that we need refer to is the refusal by the court below of the motion for a new trial for newly discovered testimony. Such refusal was discretionary with the court, and is not reviewable here. It is true the judge stated that the newly discovered testimony, if true, was merely cumulative. But that does not justify us in reversing his judgment denying the motion for a new trial.

The defendant's cause has been very fully and ably presented, but we find nothing that would justify us in setting aside the verdict and judgment. The court and jury had the benefit of all the light that could be shed upon this controversy, from every angle, by this court and the United States Supreme Court, and seem to have faithfully followed the views of the court of highest resort where it differed from the views of this court, and in other respects to have followed the well-settled decisions of this tribunal.

No error.

WALKER J. (concurring).

The facts, as now presented, are not materially different from those before us on the former appeal. There was then a motion to nonsuit, which was passed by the Supreme Court of the United States without comment. It was hardly necessary to order a new trial for error in the charge, if, upon the whole case, the plaintiff was not entitled to recover by reason of the assumption of risk. It is therefore to be fairly, if not necessarily, inferred, from the refusal to nonsuit, that there was at least some phase of the evidence that carried the case to the jury. The motion to nonsuit was entitled to first consideration, as, if decided favorably to the defendant (plaintiff in error), it fully and finally disposed of the case, and the other questions raised by the assignments of error would therefore have become immaterial. But, if this were not so, the motion should not now be allowed. It is true that the water gauge was "liable to explode," but an explosion was not so imminent as to require that Horton should quit the service of defendant, when he had been promised that the glass gauge would be repaired. A prudent man would probably take such a risk, and it was for the jury to say whether he would. He did not continue his work for any unreasonable length of time, but only for a very short time, and the question of assumption of risk or contributory negligence was eminently a proper one for the jury. Nor can it be said that plaintiff's failure to use the three gauge cocks on the head of the boiler was negligence, as matter of law. He testified that they could be used, and sometimes were used, for the purpose of gauging the quantity of water in the boiler or to ascertain its level, but that they are not altogether reliable or accurate, for he said that they would gauge somewhere near the quantity of water, but will not give the perfect level. He stated that an engine can be run without a water glass and with gauge cocks, if the latter will stay open, but that they are liable to become clogged and are easily stopped up by mud or sediment from the water. To give his language:

"Yes, you can operate an engine without a water gauge, and with the gauge cocks, but not as well. You cannot keep these cocks open. They are liable to stop up, but a water glass has got so much bigger opening here than the gauge cock. They are the safest thing at all, as they do not stop up like gauge cocks, like all of the gauge cocks I have seen."

He further stated that the mud could not be blown out, if the gauge cocks are packed with it. He said much more in regard to this feature of the case, but the above references to his testimony are sufficient to demonstrate that the case was one for the jury on the question of assumption of risk or contributory negligence.

A motion to nonsuit, or a request for a peremptory instruction to find for the defendant, requires that the evidence should receive the most favorable construction for the plaintiff, and, under our rule, the evidence only that sustains his cause of action should be considered, because the jury might adopt it and reject all the unfavorable testimony.

"It is well settled that on a motion to nonsuit or to dismiss under the statute, which is like a demurrer to evidence, the court is not permitted to pass upon the weight of the evidence, but the evidence must be accepted as true and construed in the light most favorable to the plaintiff, and every fact which it tends to prove must be taken as established, as the jury, if the case had been submitted to them, might have found those facts upon the...