Lassiter v. Seaboard Air Line Ry.

• Court: North Carolina Supreme Court
• Writing for the Court: CONNOR, J.
• Citation: Lassiter v. Seaboard Air Line Ry., 64 S.E. 202, 150 N.C. 483 (N.C. 1909)
• Decision Date: 14 April 1909
• Parties: LASSITER v. SEABOARD AIR LINE RY.

64 S.E. 202

150 N.C. 483

LASSITER v. SEABOARD AIR LINE RY.

Supreme Court of North Carolina

April 14, 1909

Appeal from Superior Court, Chatham County; Webb, Judge.

Action by W. G. Lassiter against the Seaboard Air Line Railway. From a judgment for plaintiff, defendant appeals. Reversed.

Action for personal injury alleged to have been sustained by reason of defendant's negligence. The evidence tended to show that plaintiff was, by direction of defendant's superintendent or road master, engaged, with other employés in unloading iron rails from a flat car, that the rails were laid upon the car in the usual way, and that upon either side of the car "fish bars" or "angle plates," about 18 inches long, were used as standards. They were put in the "stirrups" or "cuffs" on the side of the car for the purpose of holding the standards. Some of the rails had been taken up from the cross-ties and were being used to build a siding. The "fish bars" were suitable for standards and "constantly used for that purpose." The rails were loaded in the usual way. There were several cars of rails. In unloading the cars other than the one on which plaintiff was injured, the standards, or "fish bars," were removed, and the rails thrown upon the ground. When the hands undertook to unload the car upon which the plaintiff was injured, it was found that the rails pressed against the standards, so that they could not be removed. The plaintiff and other hands were directed to unload by raising one end of the rail, lifting it over the standard, and letting it fall to the ground, and then lifting the other end over in the same manner, or, as plaintiff says the order was, "Pick up the end of the iron and throw it off." He says that, as he did so, "it bounded some way or other and dashed back to the car." In reply to the question, "When you picked up the end of the rail to toss it over, it caught at the other end and flew back, is that the way you described it? A. It bounded and flew back. *** I was not thinking about it. I was just trying to carry out orders. I thought it would go to the ground." Mr Cain, the section master, a witness for plaintiff, says that Capt. Tussey, the road master, ordered the hands to throw the rails off. "He said he could not get the standards out until after he got the rails from around the standards. They were piled against the standards." This witness said the car was loaded in the usual way, that the fish bars made good standards, were constantly used for that purpose, that he had unloaded rails in that way before, had often seen it done and they had thrown out two or three rails before the plaintiff was injured. The rail struck plaintiff's leg, as it "bounded back," and inflicted the injury for which he sues.

The foregoing is the substance of the evidence, on behalf of the plaintiff, in regard to the way in which he received the injury. He alleges that defendant was negligent in several respects. His honor instructed the jury that there was no evidence that the car was not properly loaded, or that there was not a sufficient number of hands for that purpose. The defendant requested his honor to instruct the jury: "From all of the evidence in this case, the cause of the injury was an accident-and that they will answer the first issue, 'No."' This was refused, and defendant excepted. His honor instructed the jury that if they found that, as the plaintiff picked up the rail to toss it off the car, the other end of the rail was caught, or hung, and if the should further find that Cain or Tussey knew that the rail was caught, or hung, or that they could have known it by observation or ordinary care that it was caught, and failed to do so, and that after knowing it was caught at the end and it was tossed over and rebounded, and by reason of the fact that it was caught before it was picked, or after it was picked up and hurt plaintiff, they would answer the first time, "Yes." Defendant excepted. There was a verdict for plaintiff. Judgment and appeal.

A roadmaster directing the unloading of iron rails from flat cars must use ordinary care to see that the rails can be handled with safety in the manner directed by him.

Murray Allen and Hayes & Bynum, for appellant.

Long & Long, for appellee.

CONNOR J.

The defendant lodged several exceptions to his honor's refusal to give special instructions and to the instructions given; but error is assigned only for the refusal to nonsuit and, what is equivalent, to instruct the jury that the injury sustained by plaintiff was the result of an accident. The uncontradicted evidence is that the rails were loaded in the usual way, and that the "fish bars" were suitable and usually used for standards. His honor instructed the jury that there was no evidence that the cars were not properly loaded, or that...