Mott v. Southern Ry. Co

• Decision Date: 11 November 1902
• Parties: MOTT. v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

42 S.E. 601

131 N.C. 234

MOTT.

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

Nov. 11, 1902.

RAILROAD EMPLOYS—ASSUMPTION OF RISK.

1. Priv. Laws 1897, c. 56, which provides that any "servant or employe of a railroad company" who shall suffer injury in the course of his employment by any defect in machinery shall be entitled to maintain an action against such company, renders inapplicable the doctrine of assumption of risk in case of a servant injured while assisting in the removal of a tire from an engine, through defendant's negligence; the statute not being limited to employes running trains, but embracing all servants of railway companies.

Appeal from superior court, Iredell county; Shaw, Judge.

Action by Chas. D. Mott against the Southern Railway Company. From a judgment for defendant plaintiff appeals. Reversed.

Long & Nicholson, Armfield & Turner, and W. Q. Lewis, for appellant.

F. H. Busbee, for appellee.

CLARK, J. The plaintiff was injured while in the employment of defendant company. He was ordered by one who had a right to command him to aid a foreman to take a tire off an engine, which tire weighed 800 or 1, 000 pounds, and had to be heated red hot to obtain the expansion necessary to secure its removal. The plaintiff alleges that while he was engaged in helping to remove this tire it slipped by the negligence of defendant and its servants, as specified in the complaint, and fell upon the iron bar the plaintiff was using, crushing him and injuring him seriously. The jury found, upon issues submitted to them, that the plaintiff was injured by the negligence of the defendant as alleged in the complaint, and that the plaintiff did not by his own negligence contribute to his injury, and assessed the plaintiff's damages at $500. The court submitted, over plaintiff's objection, another issue: "Did the plaintiff assume the risk of injury when he accepted service of the defendant V" To the submission of this issue, the plaintiff excepted. The jury responded "Yes" thereto, and by reason of such response the judge rendered a judgment in favor of defendant, and plaintiff appealed.

The submission of the issue as to assumption of risk was error, the finding of the jury thereon is immaterial, and the plaintiff is entitled to judgment upon the findings upon the other issues. The case of Coley v. Railroad Co., 128 N. C. 534, 39 S. E. 43, and same case on rehearing, 129 N. C. 407, 40 S. E. 195, are conclusive of this. Those cases have been cited as authority in Thomas v. Railroad Co., 129 N. C. 392, 40 S. E. 201; Cogdell v. Railway Co., 129 N. C. 398, 40 S. E. 202: Ausley v. Tobacco Co., 130 N. C. 34, 40 S. E. 819; Springs v. Railway Co., 130 N. C. 186, 41 S. E. 100; besides other cases at this term. In Cogdell's Case, supra, the point was made, and so ruled, that the judge, under the authority of Coley's Case, properly refused to submit an issue as to assumption of risk when the cause of action was for injury sustained, in the course of his employment by a railroad employed.

The act ratified February 23, 1897 (printed, for some reason not yet made public, as chapter 56 in the Private Laws of that year), is as follows:

"Section 1. That any servant or employee 1 of any railroad company operating in this i state, who shall suffer injury to his person, ! or the personal representative of any such I employee, who shall have suffered death, in j the course of his services or employment with said company, by the negligence, carelessness or incompetency of any other servant, employee or agent of the company, or by any defect in the machinery, ways or appliances of the company, shall be entitled to maintain an action against such company.

"Sec. 2. That any contract...