Hubbard v. Southern Ry. Co.

• Decision Date: 14 December 1932
• Docket Number: 203.
• Citation: 166 S.E. 802,203 N.C. 675
• Parties: HUBBARD v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

166 S.E. 802

203 N.C. 675

HUBBARD v. SOUTHERN RY. CO.

No. 203.

Supreme Court of North Carolina

December 14, 1932

Appeal from Superior Court, Sampson County; Sinclair, Judge.

Action by Robert E. Hubbard against the Southern Railway Company. Judgment for plaintiff, and defendant appeals.

New trial.

If differing from testimony of agent or employee, his previous statements, though narrative of past occurrence, are admissible for contradiction or impeachment; giving them force of substantive evidence being error.

Civil action to recover damages for an alleged negligent injury.

Upon denial of liability, and issues joined, the jury returned the following verdict:

"1st. Was plaintiff injured by the negligence of the defendant as alleged in the complaint? Answer: Yes.

"2nd. Did plaintiff, by his own negligence, contribute to his injury as alleged in the answer? Answer: No.

"3rd. Did plaintiff assume the risk as alleged in the answer? Answer: No.

"4th. What damages, if any, is plaintiff entitled to recover? Answer: $45,000, Forty-five Thousand Dollars."

Judgment on the verdict for plaintiff, from which the defendant appeals, assigning errors.

Richard C. Kelly, of Greensboro, Butler & Butler, of Clinton, and H. E. Powers, of Greensboro, for appellant.

H. H. Hubbard and A. McL. Graham, both of Clinton, for appellee.

STACY C.J.

The defendant is a common carrier by railroad, engaged in interstate commerce, and the plaintiff was employed by the defendant in such commerce at the time of his injury. The case, therefore, is one arising under the Federal Employers' Liability Act (45 USCA §§ 51-59). Cobia v. R. Co., 188 N.C. 487, 125 S.E. 18; Soles v. R. Co., 184 N.C. 283, 114 S.E. 305.

Plaintiff was injured June 13, 1930, near Charlotte, N. C., while engaged in the discharge of his duties as helper to C. R. McClure, signal maintainer and foreman over a section of road twelve or fourteen miles in length. The plaintiff had completed his third year at the University of North Carolina as a student in the engineering department, and needed some practical experience for graduation. He was 21 years old and in good health.

On the morning in question, while undertaking to raise or set a heavy pole in the transmission line, which pole was approximately 35 feet long and weighed about 1,000 pounds, it "turned" or "careened" and fell upon the plaintiff, injuring him severely. the allegations of negligence are: (1) Failure to warn plaintiff of dangers; (2) insufficient help; (3) failure to furnish necessary tools and appliances; (4) carelessness of fellow employees. The defendant denies any negligence on its part and pleads contributory negligence and assumption of risk on the part of the plaintiff.

The evidence is conflicting on the issue of liability, but, tested by the federal rule, as announced in Western & A. R. R. v. Hughes, 278 U.S. 497, 49 S.Ct. 231, 73 L.Ed. 473, that "more than a scintilla of evidence" must be offered to carry the case to the jury, we think it is sufficient to say, without detailing the testimony of the several witnesses, that the motions to nonsuit were properly overruled.

C. R. McClure, a witness for the defendant, was asked by the plaintiff, on cross-examination, if he did not tell plaintiff's father at the hospital, in discussing the injury, that it was his fault, in that, he pushed the pole out of line causing it to fall on the plaintiff. The witness denied making this statement.

The testimony of R. H. Hubbard, father of plaintiff, was then offered in reply to contradict the witness McClure. He said: "Mr. McClure came to the hospital the first night I was in Charlotte, Saturday night (following the injury on Friday), and introduced himself to my wife and me and had with him two young men, Mr. Burnette and Mr. Walker. I asked him how my son got hurt and he said that the three of them were with him; said that they were trying to raise this pole and it was in a bad place, and the pole was so heavy that they could not raise it and it fell on him. Mr. McClure told me that he was very much hurt and worried over it; that he felt like he was the cause of the boy being injured." Objection; exception. Burnette and Walker said they did not hear this alleged conversation.

It is the rule with us that what an agent or employee says, relative to an act presently being done by him within the scope of his agency or employment, is admissible as a part of the res gestæ, and may be offered in evidence, either for or against the principal or employer, but what the agent or employee says afterwards, and merely narrative of a past occurrence, though his agency or employment may continue as to other matters, or generally, is only hearsay and is not competent as against the principal or employer. Pangle v. Appalachian Hall, 190 N.C. 833, 131 S.E. 42; Johnson v. Ins. Co., 172 N.C. 142, 90 S.E. 124; Scales v. Lewellyn, 172 N.C. 494, 90 S.E. 521; Southerland v. R. Co., 106 N.C. 100, 11 S.E. 189; Morgan v. Benefit Society, 167 N.C. 262, 83 S.E. 479; Hamrick v. Tel. Co., 140 N.C. 151, 52 S.E. 232; Hill v. Ins. Co., 150 N.C. 1, 63 S.E. 124; Bumgardner v. R. Co., 132 N.C. 438, 43 S.E. 948; Rumbough v. Imp. Co., 112 N.C. 751, 17 S.E. 536, 34 Am. St. Rep. 528; Smith v. R. Co., 68 N.C. 115; 22 C.J. 467; 10 R. C. L. 990.

Notwithstanding the rule just stated, it has been held in a number of cases that what an agent or employee says, even though narrative of a past occurrence, may be offered in evidence, not for the purpose of fixing liability upon the principal or employer, but to contradict or to impeach the agent or employee, when his previous statement is at variance with his testimony given on the trial. Wilkins v. R. Co., 174 N.C. 278, 93 S.E. 777; Morton v. Water Co., 168 N.C. 582, 84 S.E. 1019; Pate v. Steamboat Co., 148 N.C. 571, 62 S.E. 614.

However, as such statements, narrative of past occurrences, are competent only for purpose of contradiction or impeachment, it is error to admit them as substantive evidence or to give them the force of such evidence in the charge. Johnson v. Ins. Co., supra.

The court at first instructed the jury in regard to the evidence, now under consideration, as follows: "The plaintiff contends that you ought to find that Mr. McClure, superior over Mr. Hubbard, on Saturday night after the injury, went to Charlotte and went to Mr. Hubbard's father and mother and told them that he regarded it as his own fault that his son was injured, and that it happened because the pole was too heavy for them to raise, the plaintiff contends that you ought to find that that happened in attempting to raise a heavy pole of that character with insufficient help."

This was erroneous under the decision in Johnson's Case, supra.

But immediately after the jury had retired to consider the case, it was recalled and given the following instruction: "In referring to the evidence of Mr. Hubbard, Sr., of Mr. McClure telling him on Saturday after the injury that he regarded it his fault that it happened, because the pole was too heavy to raise. I told you at the time that the evidence was admitted merely for the purpose of contradicting Mr. McClure's testimony, and for no other purpose. It is also proper to say that when Mr. McClure went on the stand, he testified that the conversation did not occur. Mr. Hubbard's testimony was merely for the purpose of contradicting Mr. McClure. It was offered merely for the purpose of contradiction. The weight of it is entirely with you."

We are not now under the necessity of deciding whether this was sufficient to cure the error, without specifically withdrawing the previous instruction, as a new trial must be awarded on other grounds.

Of course, it is elementary that where there are conflicting instructions with respect to a material matter--one correct and the other not--a new trial must be granted, as the jurors are not supposed to know which one is correct, and we cannot say they did not follow the erroneous instruction. Edwards v. R. Co., 132 N.C. 99, 43 S.E. 585; Tillett v. R. Co., 115 N.C. 662, 20 S.E. 480; State v. Falkner, 182 N.C. 793, 108 S.E. 756, 17 A. L. R. 986.

The following instruction on the issue of assumption of risk forms the basis of one of defendant's exceptive assignments of error: "The contention is made by the defendant that the plaintiff assumed all risks of dangers naturally incident to the employment in which he was engaged. And the burden is upon the defendant to satisfy you that he assumed it himself--that the plaintiff assumed all risk of any dangers which were inherently incident to the kind of employment in which he was engaged."

The federal rule is that except in cases where the violation of a statute enacted by Congress for the safety of employees has contributed to the injury, the employee assumes the risks normally incident to the occupation in which he voluntarily engages; other and extraordinary risks, and those due to the employer's negligence, he does not assume until made aware of them, or until they become so obvious and immediately dangerous that an ordinarily prudent man would observe and appreciate them; in either or both of which cases he does assume them if he continue in the employment, without objection or without obtaining from the employer an assurance that the matter will be remedied; but if he receive such an assurance (the dangers being both obvious and imminent) then, pending the performance of the promise, the employee, in ordinary cases, does not assume the special risk. Of course, if the dangers be so imminent that no ordinarily prudent man, under the circumstances, would rely upon such promise, then he would assume the risk, even pending the performance of such promise. Cent. Vt. R. Co. v. White, 238 U.S....