Lunsford v. Asheville Mfg. Co.

• Decision Date: 16 January 1929
• Docket Number: 569.
• Citation: 146 S.E. 129,196 N.C. 510
• Parties: LUNSFORD v. ASHEVILLE MFG. CO.
• Court: North Carolina Supreme Court

146 S.E. 129

196 N.C. 510

LUNSFORD v. ASHEVILLE MFG. CO.

No. 569.

Supreme Court of North Carolina

January 16, 1929

Appeal from Superior Court, Buncombe County; Walter E. Moore, Judge.

Action by J. D. Lunsford against the Asheville Manufacturing Company. Judgment for plaintiff, and defendant appeals. Reversed.

Nonsuit is proper when contributory negligence appears from plaintiff's evidence, but not when such evidence is from defendant.

The evidence tended to show that plaintiff, at the time of his injury, was taking a truck out of the kiln to the transfer. The trucks ran on tracks, and were five feet long and four or five feet wide, and ran on wheels about six or seven inches high. The truck that injured the plaintiff was loaded with several tons of lumber. The trucks were pushed along the track to the "transfer," which ran on a track on the outside of the dry-kiln room.

The plaintiff testified that the transfer track and the kiln track did not match by reason of the fact that there was about a two-inch fall from the kiln track to the transfer track. Plaintiff testified as follows: "The track that ran through the kiln room was just up and down. Sometimes it ran away with you and you couldn't hold it, and sometimes you had to push it. *** You cannot follow the truck out and hold to it. You have to hold to it until you get to the door and then hold to the back sticks or get a man in front. There has to be a man in front holding to it to keep it from running off the transfer. On the 6th of May, the day that I was hurt, the truck ran out there and I undertook to hold it and had to jump on the outside to catch it and it came with such speed it hit me in the back, then it run on with me to a scotch I had on the transfer, hit the scotch and came back and bounced back and hit me again in the back and hurt me bad. *** When I jumped in front to hold it to keep it from going in the mill against the rip saw is when it hit me. *** The way I got ahead of it, it was coming and I ran to keep from mashing in the door. You cannot get beside it when it is in the door. I had to get out while I could and get hold of it in some other way when it came on the transfer. When I grabbed I threw my back against it to hold it back. *** When I went out to try and stop the truck as I went to the platform I was in front. I had my back to it. I couldn't hold any other way."

The usual issues of negligence, contributory negligence, and damages were submitted to the jury and answered in favor of plaintiff.

The verdict awarded damages in the sum of $2,500.

From judgment upon the verdict, defendant appealed.

Weaver & Patla, of Asheville, for appellant.

George M. Pritchard, of Asheville, for appellee.

BROGDEN J.

The...