Lewis v. Norfolk & W. Ry. Co.
| Decision Date | 21 April 1903 |
| Citation | 43 S.E. 919,132 N.C. 382 |
| Parties | LEWIS v. NORFOLK & W. RY. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Person County; McNeill, Judge.
Action by Fletcher Lewis, by his next friend, against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Guthrie & Guthrie, for appellant.
Boone Bryant & Biggs and W. D. Merritt, for appellee.
Plaintiff brought this action to recover damages on account of personal injuries alleged to have been sustained by the wanton and willful conduct of the defendant through one of its employés. The plaintiff in his complaint alleges that he was induced by the defendant's agents to leave his home in Person county, in North Carolina, and to go to Radford, in Virginia to work for the defendant on its railroad near that place that after a few days' work for the defendant he was discharged without cause, and without pay for his labor; that, without free transportation or without having purchased a ticket, he boarded a freight train of the defendant going in the direction of his home, and while the train was moving at a high rate of speed, near Radford, a brakeman on the train came along and ordered the plaintiff to get off the car, and, upon his declining to do so, he was knocked off the car by the brakeman and greatly injured.
In the answer, the defendant denied that the plaintiff was ever in its employment, or that he was hurt on its cars or by any of its employés; and for a further defense the defendant averred "that the defendant is informed and believes that the plaintiff, while a trespasser, and without the knowledge and permission and consent of the defendant, in the nighttime, when the defendant could not, by the exercise of ordinary care and watchfulness on the part of its employés, have seen him or have known of his presence, intending to steal a ride on defendant's freight train, accordingly got aboard of said freight train on the night of August 19, 1900, and while upon said freight train, or in attempting to get off said freight train while it was in motion, either from fright or some other cause, not attributable to any negligence of defendant or misconduct on the part of its employés, the plaintiff fell or jumped off said moving freight train and was thereby injured by his own contributory negligence as aforesaid."
The sixth allegation of the complaint was in the following words: "That while the plaintiff was on the end of said car, and while the train was running at a high rate of speed, at a point on said road not far beyond Radford, a brakeman on said train, whose name is unknown to plaintiff, came along and told the plaintiff to get off said car, and the plaintiff told the brakeman that he would do so if he would stop the train, but that he would not do so while the train was running so fast; and, when the plaintiff told the brakeman this, the brakeman, negligently, wrongfully, willfully, wantonly, cruelly, and without due regard for the safety and life of the plaintiff, knocked the plaintiff off the car with a stick, thereby causing said car wheel to run over and cut off the plaintiff's right arm at or near the elbow, and broke his skull in such a manner that a piece of the bone larger than a silver dollar had to be taken from his head, leaving the brain exposed, with no protection but the skin of his head, thus causing the plaintiff great damage and injury, and also great agony, pain, and suffering, and almost wholly incapacitating him for future usefulness to himself and family."
The plaintiff for the purpose of showing that it was the defendant's road upon which he was injured, introduced a part of section 6 of the defendant's answer to allegation 6 of the plaintiff's complaint, as follows: "The defendant admits that on the night of August 19, 1900, about 3 o'clock a. m., the engineer and fireman in charge of the defendant's engine No. 282, while looking ahead of the engine and going from East Radford, Va., to Radford Tower, discovered a colored boy, who was afterwards ascertained to be the plaintiff, lying in a wounded condition between the tracks of defendant's railroad at or near the west end of Arch Bridge on Connolley's Creek, but when or how he got there, and by what means he became wounded, the defendant has no knowledge or information sufficient to form a belief."
The remaining part of the sixth section of the answer is in these words: "And, except as herein admitted, the allegations of article 6 of the complaint are not true, as the defendant is informed and believes, and the same are therefore denied."
The defendant objected to the introduction of a part of the sixth section of the answer, insisting that the whole should go in. We can see no error in the admission of the evidence as it was received. It embraced all of the matter which bore upon the allegations made in the sixth article of the complaint as to the place where the plaintiff was injured, viz., near Radford, on the defendant's railroad. That part of section 6 of the answer which was not offered in evidence had no reference to the place where the plaintiff was injured, but was only a denial of the plaintiff's injury by the defendant or its employés. It was not fragmentary. Gossler v. Wood, 120 N.C. 69, 27 S.E. 33. The plaintiff did not offer to put in the whole of allegation 6 of the complaint, nor would he have been allowed to do so by the court, and therefore the introduction of the latter part of section 6 of the answer would have been meaningless.
It was insisted here by the counsel of the defendant that, although the plaintiff introduced the evidence "for the...
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