Nelson v. Southern Ry. Co

• Decision Date: 24 November 1915
• Docket Number: (No. 363.)
• Court: North Carolina Supreme Court
• Parties: NELSON. v. SOUTHERN RY. CO.

86 S.E. 1036

170 N.C. 170

NELSON.

v.SOUTHERN RY. CO.

(No. 363.)

Supreme Court of North Carolina.

Nov. 24, 1915.

Appeal from Superior Court, Guilford County; Lyon, Judge.

Action by Philip Nelson against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and nonsuit ordered.

Civil action, tried upon these issues: (1) Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

(2) Did the plaintiff by his own negligence contribute to his injury, as alleged in the answer? Answer: No.

(3) Did the plaintiff assume the dangers and risks, as alleged in the answer? Answer: No.

(4) What damages, if any, is plaintiff entitled to recover? Answer: $6,500.

From the judgment rendered, the defendant appealed.

Wilson & Ferguson, of Greensboro, for appellant.

Brooks, Sapp & Williams, of Greensboro, for appellee.

BROWN, J. On the 26th of June, 1914, the plaintiff being at that time a civil engineer for the defendant went to Keysville, Va., to make surveys for a side track. The superintendent met him there and showed him where the track was to be located. The plaintiff then went to work on his survey. He went over the track and marked stations on the rails 100 feet apart, and then located the side tracks and took some levels. After this was finished, he walked back over the track to check the stations. He testified that about 3 or half past 3 in the afternoon he was walking along the track between the rails checking these stations with his notebook. After passing station 21, he stepped upon a cross-tie from which a small piece 1 1/2 inches by 6 inches, V-shaped, shivered off under his weight. His foot slipped down between the ties into a space about 5 or 6 inches deep from the top of the tie to the ballast. He stumbled, fell, and dislocated his kneecap.

The principle of law upon which plaintiff rests his case is that defendant owed him a duty to provide him a reasonably safe place to do his work. The plaintiff admits that he could have done his work by walking outside of the track on the ground as well as between the rails on the ties, and that the track was in perfectly safe condition for the operation of trains and for all purposes for which a railroad track is intended.

From the circumstances in evidence, we are unanimously of the opinion that the injury inflicted on plaintiff was an accident, pure and simple, an unexpected and unforeseen result of a known cause, which ordinary foresight and precaution by defendant could not guard against.

As was remarked in the consideration of this case, the injury was as much the result of an accident as the Hammer Case (Martin v. Highland Park Mfg. Co., 128 N. C. 264, 38 S. E. 876, 83 Am. St. Rep. 671), or any other cases involving accidental injuries brought before us. To hold otherwise would make the defendant an insurer against all possible injury, and the master is not an insurer of the servant's safety. All that can be required of the master is that he shall use due and reasonable diligence in providing safe and sound machinery, in providing a safe place, and in...