Hudson v. Atlantic Coast Line R. Co.

• Decision Date: 02 October 1906
• Citation: Hudson v. Atlantic Coast Line R. Co., 142 N.C. 198, 55 S.E. 103 (N.C. 1906)
• Parties: HUDSON v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

55 S.E. 103

142 N.C. 198

HUDSON v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

October 2, 1906

Appeal from Superior Court, Edgecombe County; Ward, Judge.

Action by Ned Hudson, as administrator of James Hudson, deceased against the Atlantic Coast Line Railroad Company.From a judgment for plaintiff, defendant appeals.Affirmed.

Intestate an employee of an oil mills company, was at work in a room the door of which opened within 12 feet of a bumping post at the end of the oil mills' railroad switch, on which were certain stationary cars which were being unloaded at the time.Intestate went between the rear car and the bumping post, when he was crushed and killed by a car being switched onto the track without warning or any one to control the same, which caused the stationary cars to move and crush intestate between the bumper of the last car and the post.Held, that intestate was not guilty of contributory negligence as a matter of law.

The evidence on behalf of the plaintiff was as follows: "The defendant had constructed two tracks into the yard of the Edgecombe County Oil Mills for the receipt and delivery of freight of the mills.One of these tracks was along the side of the cotton-seed warehouse, so that the contents of cars on the track could be unloaded into the warehouse, the other track being placed some distance to the left of the first track as you entered the yard of the mills.At the end of the first track, and from 3 to 11 inches from one of the buildings of the mills, the defendant had placed a butting or bumping post to stop its cars.The distance between the mill building and this butting post was 3 inches at the bottom and 11 inches at the top, and the rail of the track for several feet approaching the butting post was raised at a very considerable angle, so that it would require force for a car to be shoved back to within 18 inches of the post, and between the butting post and the mill building there were old iron and other débris, so that one could not pass between the mill building and the butting post.The distance from the butting post to the rear end of the coupler of a car placed so that the door of the car would be opposite the door of the cotton-seed warehouse is 27 inches.The distance from the butting post to the western lines of the Southern Oil Company's property, over which the first track is laid is 108 feet 6 inches.The distance from the butting post to the switch of the railroad company is 371 feet 11 inches.Just beyond the western line of the property of the Edgecombe County Oil Mills is the main street of the town of Tarboro and a plank sidewalk over and across which the track is laid.This street and sidewalk were greatly traveled by the general public.James Hudson, the intestate of the plaintiff, was in the employment of the Edgecombe County Oil Mills, and was a reliable young man earning 85 cents per day; he worked in a huller room, the door of which opened to the left and about 12 feet from the butting post.The evening before the accident the defendant's servants, with the shifting engine, placed two cars of cotton seed of the mills on the track next to its seed warehouse, the doors of the cars being opposite the doors of the seed warehouse, to be unloaded the following morning.These cars were detached from the engine and scotched to prevent them from moving.Three other cars of the F. S. Royster Guano Company were, without the knowledge or consent of the Edgecombe County Oil Mills, and for the convenience of the defendant company, temporarily placed on this track beyond the two cars loaded with seed as described and within the yard of the mills.The day after the two cars of seed had been placed as described for the mills, and while two employés of the mills were in the cars unloading the same, the defendant took another loaded car belonging to the Royster Guano Company from still another track, brought it to the switch, and, while the same was in motion, cut it loose from its engine, and it rolled down this track across the public plankway and the main street of the town and into the yard of the Edgecombe County Oil Mills, with such violence that it ran into the three cars already stationed there and caused them to run back and into the two cars placed for the mills and opposite its seed warehouse, while the cars were being unloaded, and caused them to roll back and into the bumping or butting post.When this car was cut loose from the engine, no signal was given to the employés of the mills or to the public that it was coming.No one was on this car that was turned loose.The men on the two cars unloading seed felt a slight jar and the cars moved back about 18 inches.The witness heard some one "holler" and went out and saw James Hudson, the intestate, standing and leaning against the bumper post with his arms on it.He was 'hollering' and badly mashed, mashed sidewise, and died the next day.The cars then rolled back from the post.No one saw Hudson go between the cars and the butting post.The grade from the switch to the scales, some 50 feet within the yard of the Edgecombe County Oil Mills is downgrade, and from the scales to the butting post up grade.A loaded car cut loose at the switch will run back and run into the butting post.There was a fence on the northern and northwestern side of the property of the mills and a great deal of wood was piled along this fence, and there were tanks and other obstructions so that one coming out of the huller room by the side of the butting post could not see an engine or cars at the switch.The cars standing on the track also obstructed his view."7D""'

At the close of the evidence there was a motion for nonsuit which was overruled, and the defendant excepted, and in apt time the defendant requested the court to instruct the jury as follows: "(1) That in law, upon the evidence, the injury to James Hudson was an accident, the defendant not being required by law to foresee that a person would pass between the coupling head and the butting post in so short a space at about 20 inches, and you will answer the issue as to defendant's negligence.'No.'(2) There being no disputed facts, what is contributory negligence is a question of law, and the court instructs you that, if you believe the evidence, the plaintiff's intestate was guilty of contributory negligence, and you will answer the issue as to contributory negligence 'Yes.'(3) That if you find, from the evidence, the fact to be that James Hudson exposed himself to danger in going between the bumper post and the end of the car, the space being 18 or 20 inches, then in law he would be guilty of contributory negligence, and you will...