Nichols v. Champion Fibre Co.

• Decision Date: 24 June 1925
• Docket Number: 584.
• Citation: Nichols v. Champion Fibre Co., 190 N.C. 1, 128 S.E. 471 (N.C. 1925)
• Parties: NICHOLS v. CHAMPION FIBRE CO. ET AL.
• Court: North Carolina Supreme Court

128 S.E. 471

190 N.C. 1

NICHOLS v. CHAMPION FIBRE CO. ET AL.

No. 584.

Supreme Court of North Carolina

June 24, 1925

Appeal from Superior Court, Haywood County; Finley, Judge.

Action by Frank Nichols against the Champion Fibre Company and others. From a judgment against the named defendant, it appeals. New trial.

Judge's failure to declare and explain law arising on evidence is error, not waived by failure to request special instructions.

On September 28, 1923, defendant, Champion Fibre Company, a corporation, owned and operated a lumber plant at Waynesville, N. C; it also owned and used in connection therewith a narrow gauge railroad, extending from Waynesville, back into the mountains. On this railroad it operated cars by means of locomotive engines for the purpose of hauling sawlogs, and acid and pulpwood from points in the mountains to its plant at Waynesville. This logging road extended to the town of Delwood, at Jonathan's creek; one branch of said railroad extended down the creek, and the other up the creek. At the point where the fork is located defendant maintains a switch, known as the Delwood switch. About a mile or so above this switch, on the branch running up the creek, is another switch, known as the Carpenter switch. Defendant, in the conduct of its business, operated on this railroad two trains, one known as the "little train" and the other as the "logging train." The switches were located and maintained to enable trains to pass each other.

On said date, plaintiff, Frank Nichols, was employed by said company as brakeman and flagman on the logging train. Defendants Charley Setzer and Geo. H. Jones, were also employed by said company, the former as general manager and foreman of the logging crew, and the latter as engineer on the logging train. On the morning of September 28, 1923, defendant company had sent its "little train" up the mountains on said railroad, for the purpose of bringing down a load of steel rails. Shortly after said "little train" left the plant at Waynesville, the "logging train," consisting of 10 empty log cars and one wood car, with Setzer in charge and Jones as engineer, and plaintiff as brakeman and flagman, left the plant, on said railroad, for the purpose of going up to and beyond the Carpenter switch for a load of logs and acid wood, with directions to pass the "little train" at Delwood. This train was backed up the mountain, the engine being in the rear of the cars. When the logging train reached Delwood it was ascertained that the "little train" was not there, and was not in sight. Signals were given, and the train was stopped. After waiting a moment for the "little train," the engineer, under orders, started the "logging train" again, backing up the mountain. As the train went around a curve, at a rapid rate of speed, smoke from the engine of the "little train" was seen. Plaintiff, who was sitting on a bolster of one of the cars with Setzer, arose and went up on a car and gave signals to the engineer, who was several car lengths behind him. Jones then put on brakes, causing the train to slow down. Plaintiff had no place on which to stand, while giving signals to the engineer, except the running gear of the log car. The signals could not be given to the engineer by plaintiff while sitting down. The distance between the two trains was about 400 feet. Before the "logging train" came to a full stop, while the slack was being taken up, the engineer caused the train to start forward again with a sudden jerk. Plaintiff, who had not resumed his seat on the bolster of the car, as the train thus moved forward, fell from the train with the result that he was seriously and permanently injured.

This action is prosecuted to recover of defendants, Champion Fibre Company, and its employees, Charley Setzer and Geo. H. Jones, damages for such injuries, upon the allegation that--

"The careless, tortious, and negligent acts, conduct, and omissions of the defendants and each of them, as hereinabove, in the complaint specifically pleaded, directly, materially, concurrently, jointly, and proximately contributed to, and were, the direct and material, concurrent, joint, and proximate cause of the plaintiff's aforesaid injury."

The verdict rendered by the jury was as follows: (1) Was the plaintiff injured by the negligence of the defendants, or either of them, and if so, which, as alleged in the complaint? Answer: Yes, Champion Fibre Company. (2) Did defendant, by his own negligence, contribute to his injury, as alleged in the answer? Answer: No. (3) What damages, if any, is the plaintiff entitled to recover? Answer: $7,000.

Upon this verdict, defendants tendered to the court the following judgment, and moved the court to sign same:

"The jury having found by its verdict that the defendants, Geo. H. Jones and Charles Setzer, were not guilty of negligence that caused the plaintiff's injury, and this finding having, as a matter of law, exonerated not only the said Jones and Setzer, but also the Champion Fibre Company from liability, upon motion of Morgan & Ward and of Martin, Rollins & Wright, attorneys for defendants, it is ordered and adjudged that plaintiff have and recover nothing by his action, and defendants, and each of them go hence without day, and that plaintiff pay the costs of this action."

The motion was denied, and the court declined to sign judgment as tendered. Defendant, Champion Fibre Company, excepted. To the judgment rendered by this court, defendant, Champion Fibre Company, excepted and appealed therefrom to this court, assigning errors.

Martin, Rollins & Wright, of Asheville, for appellant.

Alley & Alley, of Waynesville, for appellee.

CONNOR J.

The jury by its verdict has found that plaintiff was not injured by the negligence of Setzer or Jones, employees of their codefendant, Champion Fibre Company. Neither of them is therefore liable to plaintiff for damages as alleged in the complaint. The jury has further found that plaintiff was injured by the negligence of defendant, Champion Fibre Company, as alleged in the complaint. This defendant, upon the verdict, is liable to plaintiff, and the judgment, that he recover of the Champion Fibre Company the sum assessed by the jury as his damages, must be affirmed, unless the assignments of error, upon this appeal, are sustained.

Defendant, Champion Fibre Company, assigns as error the refusal of the court to sign judgment tendered by it, upon the verdict of the jury and the charge of the court. This assignment of error is based upon the contention, that, notwithstanding the several allegations of negligence in the complaint, there was evidence only upon the specific allegations that plaintiff's injuries were caused by the wrongful acts of defendants, Setzer and Jones, employees of their codefendant, and that the court instructed the jury only upon the law applicable to the matters involved in these allegations. The jury having found that plaintiff was not injured by the negligence of either of its employees, Champion Fibre Company contends that it is not liable, as their employer, to plaintiff, and that the court should have so adjudged.

Plaintiff contends that there were both allegations and evidence that Champion Fibre Company, his employer, failed to perform certain primary, nondelegable duties, which it owed him as its employee, and that such failure was the proximate, or at least concurrent, cause of his injuries. Plaintiff further contends that his allegations in these respects are sustained by the verdict, and that this...