House v. Southern Ry. Co.

• Decision Date: 27 April 1910
• Citation: 67 S.E. 981,152 N.C. 397
• Parties: HOUSE v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

67 S.E. 981

152 N.C. 397

HOUSE v. SOUTHERN RY. CO.

Supreme Court of North Carolina

April 27, 1910

Appeal from Superior Court, Iredell County; Long, Judge.

Action by Ella House against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Defendant railroad was not liable for injuries to a servant whose hand while she was attempting in the performance of her duties as car cleaner to raise a car window which had become fast and the pull of which was worn smooth, slipped and went through the glass; the appliance being a simple one, and the injury one not ordinarily likely to happen.

Civil action tried at November term, 1909, of the superior court of Iredell county.

On issues submitted the jury rendered the following verdict:

"First. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

"Second. Did the plaintiff by her own negligence contribute to her own injury? Answer: No.

"Third. What damages, if any, has the plaintiff sustained? Answer: $700."

Motion to dismiss as on judgment of nonsuit formally entered and renewed at close of entire testimony, motion denied, and defendant excepted. Judgment on verdict for plaintiff, and defendant excepted and appealed

L. C. Caldwell, for appellant.

G. W. Garland and Armfield & Turner, for appellee.

HOKE J.

The plaintiff set forth her cause of action in the complaint as follows:

"Second. That on the -- day of December, 1906, the plaintiff was in the employ of the defendant as a servant at Salisbury, and engaged in cleaning passenger coaches of the defendant for a valuable consideration. That on the aforesaid day of December, 1906, while the plaintiff was at work, as aforesaid, in the performance of her duties upon a car belonging to the defendant, she was ordered and directed by the defendant to raise the windows of the car, one of which had just been repaired by the defendant, but had been repaired in such a negligent manner that, when plaintiff attempted to raise the said window, the defendant had carelessly permitted it to become so fastened and tight that, when she undertook to raise it, she had to exert an unusual amount of force, and in doing so her hand slipped and went through the window pane, breaking the glass and cutting her arm and hand, whereby she was made to suffer mental agony, bodily pain, and was permanently injured.

"Third. That the pull provided by the defendant, which it was necessary for the plaintiff to use in raising said window, had become worn smooth and unsafe for the purpose for which it was provided, thereby causing plaintiff's hand to more easily slip when it became necessary for her to exert unusual force in raising the said window."

And offered evidence tending to sustain it; and on this statement the court is of opinion that the motion to dismiss as on judgment of nonsuit should have been allowed.

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