McCord v. Atlanta & C. Air Line R. Co.

• Citation: 45 S.E. 1031,134 N.C. 53
• Parties: McCORD v. ATLANTA & C. AIR LINE R. CO.
• Decision Date: 15 December 1903
• Court: United States State Supreme Court of North Carolina

45 S.E. 1031

134 N.C. 53

McCORD v. ATLANTA & C. AIR LINE R. CO.

Supreme Court of North Carolina

December 15, 1903

Appeal from Superior Court, Mecklenburg County; Neal, Judge.

Action by David L. McCord against the Atlanta & Charlotte Air Line Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Though the trial court has the power to set aside a verdict as against the weight of evidence, which is not possessed by the Supreme Court, it is not obliged to set aside a verdict on that ground, though the judge admits that, had he been a member of the jury, he would not have found as the jury did.

Geo. F Bason, for appellant.

McCall & Nixon, for appellee.

CLARK C.J.

The plaintiff had his arm knocked back against the window frame of the car in which he was traveling as a passenger, and his arm broken in two places, by the mail pouch which had been hung up by the side of the track at a flag station to be taken off by the succeeding train. The evidence of the plaintiff was that his hand was not over five inches outside the car, while the evidence for the defendant tended to show that it was much farther. The court charged the jury: "If this mail pouch was hung up in the usual way, and the plaintiff's hand was out of the window when the train passed, and the train could have been run by, and not injured the person, while the pouch was hanging in the usual way and at the proper distance from the passing train it would not be negligence on the part of the railroad company. If the mail pouch was 13 inches from the passing train, there would not be negligence on the part of the railroad company. It is not negligence per se for a passenger to rest his arm on the window sill of the car, with his hand like this, placing his arm on the window sill, and letting his fore arm extend upward toward the top of the window, and showing his hand exposed about 4 or 5 inches outside of the window; but, if the plaintiff put his arm out of the window 12 or 13 inches, that of itself would be contributory negligence, and he would not be entitled to recover." This was a statement of the evidence as offered by the respective parties.

The first five exceptions are for instructions given at the request of the plaintiff, and the same point in all of them is substantially stated in the first exception, which is to the following charge given at the request of the plaintiff "If the jury find that the mail crane at its station was improperly constructed or improperly located, or if they find that the mail pouch was improperly or insecurely hung thereon, so that the passing of the train caused it to vibrate back and forth towards the train, or caused it to become unfastened, and by reason thereof it struck the plaintiff's hand and injured him, and if the jury find further that if the said mail pouch had been properly secured on the said crane, that it would not have so vibrated, and would not have stricken the plaintiff, they should answer the first issue 'Yes,' and the second issue 'No." The defendant's contention is that there was no evidence to justify this hypothesis being submitted to the jury. There was evidence that, if the mail pouch had been properly secured on the crane, it would not have vibrated and stricken the plaintiff's arm if it had not been more than 4 or 5 inches beyond the window sill. There was no direct evidence that the mail pouch had not been properly hung or secured, but there was evidence that, if not properly hung or secured, it could be swung to and against the side of the passing car, injuring the plaintiff's arm, though within 4 or 5 inches of the car. The judge properly told the jury that there was no evidence of a defective track or defective curves to cause a vibration of the train. So the question practically is narrowed down to this: If the arm was not more than 4 or 5 inches beyond the window, it could not have been struck by the mail bag unless it was defectively hung or defectively secured. When a passenger on a train is injured in this manner, and the cause is not shown, the presumption is that the injury occurred by the negligence of the carrier. Clerc v. Morgan, L. & T. Ry. & S. S. Co. (La.) 31 So. 886, 90 Am. St. Rep. 319; Laing v. Colder, 49 Am. Dec. 533. The passenger could not stop and examine the locality. He was in no condition to examine anything, and had been carried by the spot. He could not show how the bag was hung, or how it was suspended. That was in the knowledge of the defendant's servants. If they had shown to the satisfaction of the jury that there was no defect in the suspension or fastening of the mail bag, the evidence being uncontradicted that, if properly suspended and fastened, it could not have broken the plaintiff's arm if not more than 4 or 5 inches beyond the window, it follows, like the day does the night, that his arm was extended more than 4 or 5 inches beyond the window. On the other hand, the fact, as found by the jury, that the plaintiff's arm was crushed when not extended more than 4 or 5 inches from the line of the car, necessarily finds that the bag was defectively hung or fastened, since the evidence is that in such case only could it have swung and struck the plaintiff's arm. The manner of the negligence is not of importance, but whether there was negligence; and, the passenger being injured while on the car, the presumption of negligence arises from the breach of the contract of safe carriage. The judge submitted the real point in the case to the jury when he told them that if the plaintiff casually or inadvertently put his hand out of the window not more than 4 or 5 inches, and it was crushed by the mail bag, the company was negligent; otherwise, if he put his arm out 12 or 13 inches, according to the defendant's contention, it was negligence in the defendant not to have a free space of 4 or 5 inches beyond the line of the car, and there being evidence that, if the bag was hung 13 inches from the line of the car, it could not have swung in to hit the plaintiff's arm, unless the pouch was defectively hung or fastened, it was harmless error, if error, to tell the jury that, though the pouch might have been 13 inches, yet, if it was so defectively hung or fastened as to swing in...