Hudson v. Charleston C. & C. R. Co.

• Citation: 10 S.E. 669,104 N.C. 491
• Parties: HUDSON v. CHARLESTON, C. & C. R. CO.
• Decision Date: 14 January 1890
• Court: United States State Supreme Court of North Carolina

10 S.E. 669

104 N.C. 491

HUDSON v. CHARLESTON, C. & C. R. CO.

Supreme Court of North Carolina

January 14, 1890

This was a civil action for damages for an injury sustained by the plaintiff while an employe of the defendant, tried at the August term, 1889, of the superior court of Cleveland county before CONNOR, Judge.

The following are the issues submitted, with responses of the jury to each: "(1) Was the injury to plaintiff caused by the negligence of a servant of defendant? If so, which one? Answer. No. (2) Was the servant by whose negligence the injury was caused unskillful and incompetent, and was such incompetency known to defendant at the time of his employment? A. No. (3) Did the defendant retain such servant in its employment after notice of his incompetency? A. No. (4) Was the injury caused by the unsafe, defective, and insecure character of the engine of defendant? A. Yes. (5) Was such defect known to defendant, or could it have been ascertained by the exercise of ordinary care? A. Yes. (6) Did plaintiff by his own negligence contribute to the injury? A. No. (7) What damage, if any, did plaintiff sustain by reason of the injury? A. $8,000."

H. T Hudson, Jr., for the plaintiff, testified: "On April 29 1887, I was in the employ of the defendant as baggage-master. Just before reaching Black's station the train was behind time. The conductor, McCarthy, told me that there was a flatcar with brick on it to be cut off. When we reached there I got off to cut off, so that it could go on the side track. I left the pin as I had been directed, so that it would be in position. I waved the fireman to go forward. Instead of doing so, the engine moved back. I called to him to stop. He did so, and I went to uncouple the car again, and felt the motion of the train. As I attempted to get out, I was caught. The car moved backwards. My left foot was in between the two rails, my right foot on the outside of the rail. My foot was cut off. I was instructed by Maj. Jones, the superintendent to aid in the coupling of cars, and do anything I saw to be done, without waiting to be told. I was then 20 years old. I was receiving $25 per month. I still suffer pain. The signal which I gave was to go forward. There were two box-cars between me and the engine. The fireman was looking at me when I gave the signal. I had been on the road from the 11th day of April. The engine was No. 16. I know nothing of the condition of the engine. I had received no notice of any defect in the engine. I knew nothing of the fireman's unfitness to run an engine. Had received no notice of it. It was customary for the engineer to leave his engine and go to get orders, leaving the fireman in charge. Rutherfordton was the western terminus of the road. I was born May 20, 1867. Cross-Examination. We were due at Black's at 2 o'clock. Mr. Maring was engineer. Wesley Wright was fireman. I do not know whether we stopped on an incline or on a level. I was examined in this case before. My statement now is the same as then. I said that I must have put my foot on the rail in trying to get out. I think the train stopped on a little incline. The train had three box-cars, the car of brick, the baggage-car, and two passenger-cars. The engine was standing reversed. Ramsaur was brakeman. I do not know where Ramsaur was. I did not send him to the switch. The engine and tender, then a box-car, then the flat, then a box then the baggage-car. It was a C., C. &. C. car. They were new. I saw no defect in the cars or the bumpers. I did not signal that I was going in between the cars. It was not necessary. The car was standing still. The fireman was in the cab. The engine was pointing towards Rutherfordton. I stepped out six or eight steps to give the signal. When I told the fireman to stop, and he did so, he was standing in the cab. I think that he had his hand on the lever. I think he could have heard me. As he stopped, I stepped in between the cars. I had to step out some distance from the train before the fireman could see me. I gave the fireman no notice that I was going between the cars. The defendant had me cared for; paid for the operation; paid my board for three months. Did pay my salary after I was hurt. I do not remember how long. Redirect. This is a printed copy of rules put in my hands by the company."

R. P. Bryson, for the plaintiff, testified: "I am a machinist. I work on engines. I think I understand locomotives. I repaired an engine for defendant,--a horizontal engine. There were three on the defendant's road. They had two horizontal and one set at angles. The defendant used a horizontal engine on the passenger train. The one which I repaired is an old engine, badly defaced. Her pump works had given away. The valve-seat is connected with goose-neck. Her frame was in bad condition; broken in two. The top section was broken. The valve will not operate perfectly in an engine in that condition. The engineer cannot control his engine. Have seen the passenger engine pass frequently. It made a noise by its exhaust pipe, showing it to be in a leaky condition. This is shown by the noise it made. I saw the train which brought Mr. Hudson up. I saw the engine. It was running with one car. If the throttle was leaking, the engine is liable to move at any time. An engine in this condition is liable to go in a direction opposite from that desired. Cross-Examination. I did the work on the engine in the spring of 1887, April or May. The engine was terribly defaced. I was called upon to turn up stud-bolts. I put it in good repair as far as I examined, or as I was directed to do. I have run a locomotive. I worked in the shop about seven months. I called the attention of Mr. Jackson to the bad condition of the engine."

Mr. Jackson, for plaintiff, testified: "I know Mr. Bryson. I worked in the shop with him. Mr. Bryson said to me that the valve of the engine was badly out of fix. I did some work on it. It was the first engine that came on the road. I think it was 16. Ferguson and Maring brought it there. I fixed it three or four times. I could tell that the engine was not exactly right by the sound."

Bryson, being recalled by plaintiff, testified: "I spoke to Jackson before Hudson was hurt."

Mr. Huske, for the plaintiff, testified: "I know No. 16, on the A. L. R. It was sent to the C., C. & C. I have seen it on the C., C. & A. R. R. It is running on that road now. The A. & C. A. L. had an engine No. 16. They had only one engine of this number. This was about three years ago. What was the condition of the engine at that time, as to her exhaust? (Defendant objected to this question. The objection was overruled, and the defendant excepted.) She had a kind of blow from her exhaust. She was used on a material train; sometimes on the local freight. She appeared to be an old engine. Was not used for passenger train. I was on the A. & L. R. R. seven years. She was of about fourteen car power. Cross-Examination. I was conductor. I quit. Got into a little trouble. Train broke loose. I resigned at once. Before I was conductor I was flagman. When I last saw her she was going to the shop, and then to the defendant's road. She is now in Charlotte doing duty as a freight engine." Plaintiff closed.

DEFENDANT'S EVIDENCE.

Jones, for defendant, testified: "I am superintendent of defendant's road. Have been for three years. Prior to that time, for 12 years, I had been superintendent of other roads. I know No. 16. We hired it of the R. & D. R. R. about the 1st of April; about a month before plaintiff was hurt. She came to me right out of the shop, and in good order. At the time of the accident it was in good condition. We kept it two or three months, and returned it in good condition. We received two other engines, and had no use for it. No defects were ever called to my attention. No repairs were made while we had it, other than 'lining up.' We used it, I think, five months. I saw it nearly every day. The train stopped at Black's, on an incline, on a grade of 80 feet to the mile, on a curve. The distance between the cars was 16 or 18 inches. When the cars were standing it would be about 33 inches space from the outside of the wheels. When a person is uncoupling a car he should stand with his face to the engine, straddle the rail. I employed plaintiff to go into baggage-car. My instructions were to make himself useful, and obey those to whom he was assigned; in this case, the conductor. I put Maring in charge as engineer, and Wesley Wright as fireman. They were competent. They were well recommended. I made inquiry. Wright made trips for the road as engineer. Maring was instructed to get orders from R. & D. office, and Wright ran the engine into the depot. The engine was on a curve turned towards Black's station. Before we got the 16, the defendant road had two small engines; 16 was a horizontal, and the Arcturus. This was the engine sent to the shop. She was pulled in with the Putney. No. 16 was never in the shop. I got to the place in three minutes after the accident. Cross-Examination. I did not examine the valves. It was the action and not the looks of them that I relied upon. The cylinder head was blown out some time after the accident. I cannot say that it was No. 16."

Mr Maring, for defendant, testified: "I am 51 years old. Have been in the railroad service 33 or 34 years. Have been engineer 28 years. I went into the employment of defendant road in September. Knew No. 16. I had run it on the Air Line. When it went on defendant road the engine was in good condition. Have pulled 15 cars. The engine always obeyed me. I never knew of its being in the shop for repairs until after the accident. I run it the day of the accident to Black's. It was in good condition. Wesley Wright had been in charge of the engine 6 or 8 months. H...