Johnson v. Carolina, C. & O. Ry. Co.

• Decision Date: 27 January 1926
• Docket Number: 530.
• Parties: JOHNSON v. CAROLINA, C. & O. RY. CO.
• Court: North Carolina Supreme Court

131 S.E. 390

191 N.C. 75

JOHNSON v. CAROLINA, C. & O. RY. CO.

No. 530.

Supreme Court of North Carolina

January 27, 1926

Appeal from Superior Court, Avery County; Harding, Judge.

Action by R. W. Johnson against the Carolina, Clinchfield & Ohio Railway Company to recover damages for alleged negligence that resulted in permanent injury to plaintiff. Judgment for plaintiff, and defendant appeals. New trial granted.

This was a civil action to recover damages, brought by plaintiff against defendant, for alleged negligence that resulted in permanent injury to plaintiff.

The material allegations upon which the complaint is founded answer of defendant, facts and assignments of error, will be considered in the opinion. From a judgment in favor of plaintiff, defendant appealed to the Supreme Court.

Resident of North Carolina held not bound by Workmen's Compensation Act of Tennessee, where he was injured and contract was made.

Verdict based on Tennessee Workmen's Compensation Act held not sufficient to support judgment in common-law action for negligence.

J. J McLaughlin, of Johnson City, Tenn., Morgan & Ragland, of Marion, F. A. Linney, of Charlotte, Murray Allen, of Raleigh and Pless, Winborne & Pless, of Marion, for appellant.

Harrison Baird, of Elk Park, Chas. Hughes, of Newland, W. C. Newland, of Lenoir, and S. J. Ervin and S. J. Ervin, Jr., both of Morganton, for appellee.

CLARKSON J.

The plaintiff's allegation of negligence in the amended complaint was that plaintiff, on October 4, 1922, while in the employ of defendant, at Erwin, Tenn., was permanently injured. "That it was the duty of the defendant (in the exercise of ordinary or reasonable care) to furnish the plaintiff and other employees working with him a reasonably safe place in which to perform the duties required of him and them in their labor, and to furnish a sufficient number of competent men to safely do said work. * * * That by the wrongful, careless, and negligent acts on the part of defendant in not furnishing sufficient men to perform the labor aforesaid, and in furnishing an inexperienced and incompetent man to assist in doing said heavy work, and on account of the carelessness and negligence of said inexperienced and incompetent colaborer or fellow servant of the plaintiff who was assisting him in doing said work in the manner hereinbefore alleged by and under the directions and command of the defendant, the plaintiff has been permanently injured and incapacitated for doing any work," etc.

Plaintiff set forth two causes of action: (1) Defendant was engaged in intrastate commerce at the time of the alleged injury; (2) interstate commerce. It is conceded on both sides that the plaintiff was not employed at the time of the injury in interstate commerce.

The defendant denied that it was engaged in interstate commerce, and alleges that it was engaged in intrastate commerce and sets up the defenses:

"That at the time of the injury complained of the defendant was engaged in intrastate commerce, entirely within the state of Tennessee, and the plaintiff was employed by the defendant in said intrastate commerce, and any action which plaintiff has against the defendant is governed by the Public Acts of the Tennessee Legislature of 1919, c. 123, and amendments thereof, known as the Tennessee Workman's Compensation Act, which defendant here pleads and relies upon. * * * And that plaintiff's action should have been brought before the Tennessee tribunal provided for in said act, and that this court has no jurisdiction in this action. And, if plaintiff has any cause of action against the defendant, which defendant denies, his said action is governed exclusively by said Tennessee Workman's Compensation Act. That, as defendant is informed and believes, the injury complained of was caused or directly contributed to by the negligence and want of care on the part of the plaintiff, who was in charge of, and directing, the work on said car at the time said injury is alleged to have been received, or by the negligence or want of care on the part of his fellow servant, and defendant pleads said negligence of plaintiff and his fellow servant in bar of any recovery herein. And especially pleads that under the law of Tennessee contributory negligence and negligence of a fellow servant are bars to recovery in a common-law action, and pleads and relies upon said law. * * * That the plaintiff failed to give to the defendant written notice of the injury within 30 days after the occurrence of the accident, and the plaintiff failed to file with the tribunal having jurisdiction to hear and determine the matter, a claim for compensation under the provisions of the Act of the Tennessee Legislature of 1919, c. 123, and amendments thereof, within one year after said accident, and failed to commence this action within one year after the alleged injury as required by the statute of limitations of the state of Tennessee, and the defendant especially pleads said failure and neglect on the part of the plaintiff as a bar to his right to recover in this action. That the plaintiff, by accepting employment, accepted the provision of said statute, and is bound thereby in this action."

Summons in the action was issued January 6, 1923, and served on defendant January 8, 1923. Original complaint was filed January 29, 1923. At July term, 1924, plaintiff, over objection of defendant, was allowed to amend his complaint, which was filed September 12, 1924.

Plaintiff's evidence showed that he was, and had been, a resident of Avery county, N. C., for about 40 years. He was 52 years old. The contract was made in Erwin, Tenn. Henry Davis came to see him, and, in consequence of what he said, plaintiff went to Erwin, Tenn. He was a carpenter, and was put to work on the repair yard. He did the woodwork on freight cars. He commenced work for defendant on September 6, 1922, and was injured October 4, 1922. Did general repair work on the cars.

Plaintiff testified in part:

"Before starting at this work, I had spoken to the foreman about it. I had asked him to furnish some more hands. He went to start away when he gave us these instructions, and I called to him and said, 'Mr. Broyles, can't you give us two more men; we have only two men, and two of our men are gone, and this is pretty hard work and unhandy work.' And he just dropped his head for a moment, and said, 'Well, do the best you can boys.' This is the first work of that kind I had done, and three men had been working with us up to the present. The three men included myself. We commenced with four, and the four only worked a few days, and they cut one off. When I told Mr. Broyles we needed more men, there was just Mr. Woody and myself, and we went ahead with the work the best we could. I was down under this car on the ground, and Mr. Woody was up on the car, and there was a bench there, and he had to get up on this bench--up high to let this rod down through the top plate. We had jacked the car. The jack worked by lever. The size of the piece of timber that we had from the roof of the car down to the top of the jack was 4 by 6 yellow pine, perfectly square on each end, and somewhere from 4 to 5 feet long. The base of a 20 top jack is about 20 inches. The top of this ratchet had a foot on it. I suppose would set up something like 6 inches up above the top of the jack, and then it would run up something like the length of the jack. That would bring the bottom end of the piece of timber up something like 3 1/2 to 4 feet up above the floor of the car. I was on the ground. It was about 5 feet from the floor of the car down to the ground--down to the top of the track. I had gotten down to take this rod, and Mr. Woody let the rod down, and so we needed a hand. He could not attend to both jobs at one time. I had taken this iron rod, and placed it down through the sill, and had stooped down to start a nut in the rod, and, as I went to start this nut, I looked and discovered that Mr. Woody had his hand on the lever of that jack. I took my eyes from him, and started this nut on the rod, and I don't remember if I had got the nut started on the rod or not, but not more than two seconds from the time I took my eyes off of him this timber all of a sudden struck me on the top of the head," etc.

It was further alleged in the complaint that only one man was furnished to assist in doing the heavy work; "the said young man so furnished being young, inexperienced, and incompetent to assist in doing said work." The evidence showed that Eli Woody, the young man, was about 20 years of age.

The following appears of record:

"After the jury had been impaneled and the pleadings read, the court inquired of counsel for plaintiff and defendant as to their contentions in regard to the law under which this case should be tried. Counsel for plaintiff contended that the common law applied, or that the case should be tried under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). Counsel for defendant contended that the common law did not apply, and that the federal Employers' Liability Act did not apply, but that this cause, if tried at all under any act, should be tried under the Tennessee Compensation Act, and further contended that, if tried under that act, it appears upon the pleadings as now read before the court that the plaintiff's cause of action was barred by the statute of limitations, and could not be tried at all in this court for that reason. And for the further reason that the case of action set up in the complaint is not under the Tennessee Compensation Act, and is set up only in the answer filed by the defendants as therein shown. The court, after hearing argument as to plaintiff's and defendant's contentions in regard to the

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