Murphy v. Murphy

• Decision Date: 16 March 1932
• Docket Number: 554.
• Parties: MURPHY v. MURPHY et al.
• Court: North Carolina Supreme Court

162 S.E. 901

202 N.C. 394

MURPHY v. MURPHY et al.

No. 554.

Supreme Court of North Carolina

March 16, 1932

Appeal from Superior Court, Yancey County; Harwood, Special Judge.

Action by Tom Murphy against Frank Murphy and the Carolina Mineral Company. From judgment for plaintiff, the Carolina Mineral Company appeals.

Reversed.

Duty of owner of private railroad to another who fell or was pushed off hand car operated by others on defendant's track depends on status of such person.

Private railroad not guilty of negligence tending to increase hazard to person while on hand car owned and operated by others on defendant's track held not liable for resulting injury.

The defendant, Carolina Mineral Company, owned and operated a feldspar mine near the falls of Big Crabtree creek, and also owns a line of railway about eight miles in length, over which road large quantities of ore or feldspar were transported. Certain employees of the corporate defendant owned what is referred to in the evidence as a spat. A spat is a gasoline hand car about eight feet long and four or five feet wide. There are planks on each side of the car and persons riding sit on these planks and rest their feet on a rest board over the side of the car. The top of the car is flat like a table. The evidence tended to show that for several years this gasoline flat car had been operated up and down the road on Sundays and various people rode thereon. The roadbed had many sharp curves. No price was charged for riding the car. The evidence further tended to show that the plaintiff was employed by the defendant mineral company and worked until 12 o'clock Saturday. On Sunday morning the plaintiff went out to the road and found that the hand car was being operated that day and several persons were riding thereon. The car was driven by the defendant Frank Murphy. He signaled the car and it stopped and he boarded it. The narrative, as given by the plaintiff, is substantially as follows: "When sitting on this car your feet rested on a little platform or a little board across there. You sit on the car like you were sitting on the side of this table. This car was also used for hauling supplies to the mine. Several times I have seen Frank Murphy operating this car on Sundays. I have seen him operating three or four Sundays. He has been employed by the Carolina Mineral Company three or four years. Frank Murphy was driving the car on the day I was injured. I got on the car about 200 yards up from highway No. 69. I had ridden on the car on Sundays prior to the time I was injured and on week days also. The road curved at the point where I was injured. The joint stuck out there in the curve of the road and there was a little elevation--not much. Frank Murphy was driving the car at a speed of fifteen or twenty miles an hour. On the day I was injured I think Frank Murphy was drunk. When we reached the curve the motor car gave a quick jerk and I fell off. There was nothing there for me to hold to. It was customary for employees to ride on Sunday if they wanted to. At the time of the quick jerk when the car threw me off it dragged me fifteen or twenty feet. The car ran on forty or fifty feet after I was thrown off. My leg was broken. I don't know who owned the car at the time--whether the Carolina Mineral Company or the employees. I was not starting back to work when I got on the car. I was not working for the Mineral Company at the time and had not worked for them since twelve o'clock the day before. I had drunk all there was in a pint bottle except a couple of drinks. I was not drunk enough not to know what was happening. I was not drunk that day. When I got on the car there was seven or eight or nine others including two girls named Lockie Tolley and Ethel Tolley. I sat down on the right-hand side of the car. I changed from the right side of the car to the left in that little meadow where they stopped to get the horses off the track. On the left side of the spat were two Tolley girls. Lockie Tolley was in front on the left side before I changed sides. I got up and sat down beside Lockie Tolley on her left side and in front of her. I had never seen her before in my life nor spoken to her. I was comfortable on the right-hand side and had no reason to go over on the left-hand side. Two or three minutes after I got on the left-hand side I was thrown off. When I sat down by Lockie Tolley I was just talking and laughing and going on with her. Part of the time I was playing with her --pinching her. I was just playing with her. I was sitting right against her and pinched her arm. She did not shove me off the car. She just shoved me in play. It was while I was playing with Lockie Tolley that I got off the car. Nobody else fell off that car at that time except me. I was on the car that day for my own pleasure and convenience and none...