Means v. Carolina Cent. R. Co

• Decision Date: 24 April 1900
• Court: North Carolina Supreme Court
• Parties: MEANS v. CAROLINA CENT. R. CO.

35 S.E. 813

126 N.C. 424

MEANS

v.CAROLINA CENT. R. CO.

Supreme Court of North Carolina.

April 24, 1900.

MASTER AND SERVANT—RAILROADS—OPERATION OF TRAINS—NEGLIGENCE—DISMISSAL— MOTION—EVIDENCE CONSIDERED—APPEAL— VERDICT—REVIEW.

1. Intestate, a servant of defendant company, was a brakeman on a freight train carrying a passenger coach, and running on a regular schedule, under the management of one who was both engineer and conductor, and who had the right to employ or discharge any of the crew, which fact intestate knew. As the train was pulling out of a station, intestate was ordered by the engineer to collect the fares and bring them to him, which he did; and on returning, the train running too fast for him to safely jump off the engine and onto the passenger coach as it came by, he started back over the train, and, in going from the tender to a flat car, fell, and was run over and killed. Held, that defendant was guilty of negligence, in not having a conductor on the train, and in giving the order it did, through its vice principal, the engineer, without allowing intestate time to execute it without endangering his life.

2. Acts 1897, c. 109, as amended by Acts 1899, provides that defendant may move for a nonsuit when plaintiff has rested, and, if the motion is denied, may except and appeal, or may introduce evidence and thereby waive his exception, unless he should renew the motion after all the evidence is in, and if the motion is then refused, on a consideration of all the evidence, he may except, and after verdict have the benefit of his exception on appeal. Held, under this statute, that if defendant elects to introduce evidence after denial of his motion, he loses the benefit of his exception, and, on renewal of the motion, plaintiff has the benefit of defendant's evidence as well as his own.

3. Where there was sufficient evidence, which, if believed by the jury, would authorize a verdict, it will not be reviewed on appeal.

Appeal from superior court, Mecklenburg county; McNeill, Judge.

Action by Maggie Means against the Carolina Central Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Burwell, Walker & Cansler, for appellant.

Osborne, Maxwell & Keerans (McCall & Nixon, on the brief), for appellee.

FURCHES, J. This case Is before us for the third time, as may be seen in 122 N. C. 900, 29 S. E. 939, and 124 N. C. 574, 32 S. E. 960, 45 L. R. A. 164. The facts stated in this appeal are substantially the same as when here last (124 N. C. 574, 32 S. E. 960, 45 L. R. A. 164), and for that reason it Is not necessary for us to restate them.

The plaintiff's intestate was killed before the passage of the fellow-servant act of 1897 (chapter 56, Priv. Acts), and is governed by the law as it existed before its passage. The train that killed the intestate was composed of freight cars and a passenger coach, used for the accommodation of the traveling public. It was run on regular schedule time, and did a considerable passenger business. It was under the control and management of John Hall, who was both engineer and conductor, and the intestate was one of the employes composing the crew. His employment was graded as that of brakeman, and his duties were to act as a brakeman, and also to attend the "shanty" coach, keep it in order, keep up fires, and, when directed to do so by Hall, to collect the passenger fares. Hall had the right to employ the hands composing his crew, the right to discharge them, and had the right to discharge the intestate, Means, and the intestate knew this. On the night the intestate was killed, at a station on the defendant's road called "Crouce, " it is in evidence (offered by the plaintiff) that Hall ordered the intestate to collect the passenger fares and bring them to him. This was denied by the defendant. The plaintiff also offered evidence to the ef-feet that, after the train had started, the intestate rushed forward with something in his hand, and said: "Let me by. I have to take these tickets to Mr. Hall." It is also in evidence that the intestate got on the moving train and delivered the tickets to Hall, and that, by the time the intestate got to Hall and delivered the tickets, the train was moving too fast for the intestate to get off the train and get on again at the rear end, where his duties as brakeman were, or, if so, not without great risk and danger. The train moved on for a short distance, when a jar was felt The train slowed up and stopped, and Hall came back, inquiring for Means; saying he was killed, —he felt the jar. They went back, and found his mangled body cut in twain, —one half on the outside of the iron rail, and the other half inside. It is not certainly known how the accident occurred. But upon examination the glass of the intestate's broken lantern was found on a flat car next to the tender; and it is supposed that, in trying to make his way back over the train after delivering the tickets to Hall, he fell between the tender and the flat car, and was run over and killed. This we think fairly presents the case on appeal.

There are a great number of exceptions in this case, and 39 assignments of error, presenting probably different shades of phases, in which the able counsel of the defendant, from his standpoint is able to see more merit than we are. They have all been examined and considered, but It could hardly be expected that we should discuss each one of these assignments in the opinion of the court We will therefore have to consider them together, as we think they bear upon and affect the merits or points involved in the case. One of the principal matters discussed was the nature of the employment of the intestate, his duties, and assumption of risk. We do not propose to pursue this line of discussion further than to say that, if it was embraced in the contract of employment, It was an extra duty required of a brakeman, and, if he assumed any risk above that of a brake-man, it was only such risk as would ordinarily exist in collecting the fares of passengers and taking them to Hall.

Another exception is that the court violated the act of 1896 (Code, § 413), in what he said as to the duty and liability of the defendant...