Lloyd v. Southern Ry.

• Decision Date: 22 April 1915
• Docket Number: 320.
• Citation: Lloyd v. Southern Ry., 85 S.E. 10, 168 N.C. 646 (N.C. 1915)
• Parties: LLOYD v. SOUTHERN RY.
• Court: North Carolina Supreme Court

85 S.E. 10

168 N.C. 646

LLOYD v. SOUTHERN RY.

No. 320.

Supreme Court of North Carolina

April 22, 1915

Appeal from Superior Court, Orange County; Rountree, Judge.

Action by James M. Lloyd against the Southern Railway. From a judgment for plaintiff, defendant appeals. Reversed.

Clark C.J., dissenting.

A railroad employé's injury by the shoving of a tie with such force that his hand was caught held the result of an accident.

This is a civil action, tried at December term, 1914, superior court of Orange county, his Honor Judge Rountree presiding, upon these issues:

(1) Was the plaintiff injured by the negligence of the defendant company, as alleged in the complaint? Answer: Yes.

(2) Did the plaintiff, by his own negligence, contribute to his injury? Answer: Yes.

(3) What damages, if any, is the plaintiff entitled to recover? Answer: $500.

In apt time the defendant moved to nonsuit, which motion was overruled. From the judgment rendered, the defendant appealed.

E. S Parker, Jr., of Graham, for appellant.

John W Graham and A. H. Graham, both of Hillsboro, for appellee.

BROWN J.

The plaintiff introduced evidence tending to prove that on the 26th day of September, 1913, he had been in the employ of the railway company about 19 months, doing work of the kind he was engaged in on that day; that he and four other men were engaged in the work of taking out old ties and putting in new ones under the rails on the trestle across Haw river; that the ties were about 11 feet long, and that they were thrown down across both rails. There were two men on the scaffold on the west side of the rails and two men on the east side, and that plaintiff was in the center of the track. The tie was first pulled back west until the east end dropped down just inside the east rail. Then the plaintiff, putting his hands on the tie, and the two men west, joined together in pushing the tie east under the east rail until the western end of the tie would drop down just inside the western rail, when the tie would be pushed back west by the joint effort of the plaintiff and the two men to the east of the east rail until it was in position.

The plaintiff testified:

"I have no explanation to make other than I had my hand on the tie to bear it down, and it went over, and the end flew up and caught my hand."

On cross-examination he testified that two men named Mitchell and Watson were on the west side of the track, and that he was in the middle, and that all three caught hold of the tie and shoved it across, and that it went too far and caught his hand and mashed his fingers. He testified that he was shoving the tie, but that the real strength that pushed the tie came from the men to the west.

We are of opinion that the injury received by the plaintiff was the result of an accident, pure and simple. It was an unusual effect of a known cause, and therefore not expected, and almost impossible to guard against. In work of that kind the amount of human strength expended in pushing the ties cannot be regulated with mathematical accuracy. The work was simple and required no more than ordinary skill and experience. It is such an accident as might happen to one engaged in many different kinds of labor. It may happen to the farm laborer, to the house builder, as well as to the railroad employé.

This case is governed by the principles laid down in Brookshire v. Electric Co., 152 N.C. 669, 68 S.E. 215; Simpson v. Railroad Co., 154 N.C. 51, 69 S.E. 683. It is very much like Lassiter v. Railroad Co., 150 N.C. 483, 64 S.E. 202, in which the plaintiff in that case was injured while unloading rails from a flat car, caused by a rail bounding back in an unusual and unexplained way and striking him. As said by Mr. Justice Douglas in Bryan v. Railroad, 128 N.C. 387, 38 S.E. 914:

"The employer is not responsible for an accident simply because it happens, but only when he has contributed to it by some act or omission of duty."

We see nothing in this case upon which to base the charge of negligence. The motion to nonsuit is allowed.

Reversed.

CLARK C.J. (dissenting).

The plaintiff was not intentionally injured, of course, by his fellow servants, but there is evidence that his injury was not "purely an accident." The evidence shows that he was not injured by any unforeseen circumstance, but because his coemployés, though looking at him and knowing that his hand was on the top of the tie to depress it so that the end might go under the rail, negligently and carelessly shoved the tie with unnecessary and sudden force, so that he did not take his hand out in time to prevent the injury. The jury found that he was guilty of contributory negligence doubtless because he might have been quicker in taking his hand off the tie. But the jury found, as authorized by the act of 1913 and the charge of the court, that the greater negligence was on the part of his coemployés.

On the motion of nonsuit, the evidence must be taken more strongly in favor of the plaintiff. But in any aspect of the evidence, if there is any to make it an accident, this was a matter for the jury, and they have found by the preponderance of the evidence, and under a correct charge by the judge, that the injury was not an accident, but that it was due to the negligence of plaintiff and his fellow servants, but in the larger degree to the latter.

In Rushing v. Railroad, 149 N.C. 160, 62 S.E. 892, this court held:

"Motion for nonsuit was properly denied. The case was properly one for the jury."

And added:

"The court * * * correctly charged, though excepted to: 'If the jury should find, by the greater weight of the evidence, that while the plaintiff was carrying the log he stumbled and fell, and, while down, his fellow servants, when they could have prevented the injury by holding the log, negligently and carelessly threw down their end of the log, when, by the exercise of ordinary prudence, they could have held it and prevented the injury, then it would be chargeable to the negligence of the defendant's employés; and, if this negligence of fellow servants was the proximate cause of the injury, the jury would answer the first issue, "Yes." ' "

The present case is stronger for the plaintiff, because he did not fall, but was in his proper place with his hand on top of the tie in the discharge of the duty assigned him to depress it so that the tie might pass under the rail, and he was injured by the sudden, unexpected, and unnecessary exertion of too much strength by his coemployés in pushing the tie in a manner to prevent his taking his hand out of the way, which assuredly he would have done if notified. Otherwise he would have been injured solely by his own negligence, which the jury negatived.

In Buchanan v. Railroad, 84 S.E. 52, at this term, Hoke, J., says:

"In Russell v. Railroad, 118 N.C. 1098 [24 S.E. 512], and in cases before that time, it was declared to be the correct principle that if, on a given state of facts, two men of fair minds could come to different conclusions as to the existence of negligence, the question must be determined by the jury."

In Forsyth v. Oil Mill, 167 N.C. 180, 83 S.E. 320, Brown, J., says:

"It is well settled that the court cannot direct a nonsuit and give judgment in favor of a defendant, on whom no

...