Patton v. Western North Carolina R. Co.

• Decision Date: 11 April 1887
• Citation: 1 S.E. 863,96 N.C. 455
• Court: North Carolina Supreme Court
• Parties: PATTON v. WESTERN NORTH CAROLINA R. Co.

96 N.C. 455

1 S.E. 863

PATTON

v.WESTERN NORTH CAROLINA R. Co.

Supreme Court of North Carolina.

April 11, 1887.

Appeal from superior court, McDowell county.

Batchelor & Devereux, for plaintiff.

D. Schenck, for defendant.

MERRIMON, J.

The plaintiff brought this action to recover damages for injuries sustained by him as alleged in the material parts of his complaint, whereof the following is a copy:

“(2) And the said plaintiff, at and before the injuries and wrongs hereinafter mentioned, was employed by the said defendant as a section hand on the section from ___ to Old Fort, on the line of said railway, at and for a certain hire and reward agreed upon by the parties in that behalf; that the said plaintiff was then and there hired and employed by one Grant, who was then and there the agent and servant of the said defendant in that behalf; the said Grant then and there being the section boss or foreman for said section, with full power and authority of the said defendant to hire and discharge hands and servants in that behalf on said section, and who was then and there the superior of the said plaintiff in that behalf, whose orders and commands, in the line of said service, as the agent, foreman, and boss of the said defendant, the said plaintiff was lawfully bound to obey.

“(3) That on or about the ___ day of March or February, A. D. 1883, the said Grant, as such section boss, foreman, and agent of said defendant, and superior of said plaintiff, ordered and commanded said plaintiff to go on board a train at the village of Old Fort, on the line of said defendant's railway, as aforesaid, then and there the train of the said defendant, being then and there managed, controlled, run, and conducted by the agents and servants of the said defendant; and the said plaintiff, then and there obeying the order and command of the said Grant, as aforesaid, in the line of his duty under his contract of service, did get on said train with the said Grant, as aforesaid, and became a passenger thereon in his said line of duty, for the purpose of assisting in removing a wreck of a freight train on said railroad.

“(4) That said train, as aforesaid, was then and there in motion; and that, as said train neared and approached the wreck as aforesaid, the said Grant, as the servant, agent, and section boss of the said defendant, and then and there being the superior of the said plaintiff, with full power and authority of the said defendant in that behalf, as aforesaid, and the said plaintiff being then and there lawfully bound to obey the orders of the said Grant, agent and servant of the said defendant as aforesaid, and the said train being then and there in motion, and running at a swift rate of speed, the said defendant then and there, by its said agent, servant, and section boss, the said Grant, not regarding his duty in that behalf, and not exercising due care, carelessly, negligently, and unskillfully ordered and commanded the said plaintiff tojump from the said train, then and there being in motion, as aforesaid, for the purpose of assisting other servants and section hands of the said defendant in the line of their duty in that regard, the said act of jumping from said train being then and there extrahazardous and dangerous; and the said defendant, by its agents and servants, and by its agent and servant, the said Grant, well knowing the same, and the said plaintiff being unacquainted with the railway service in general, and a novice in railroad work, and being ignorant of the danger and hazard to which he was exposed by said command and orders of the said defendant, as aforesaid, and without any fault or negligence on his part whatsoever, did then and there, obeying said commands and of the defendant, jump from said train, being then and there in motion; and-

“(5) In so jumping from the said train, the said plaintiff, by carelessness, negligence, and default of the agents and servants of the said defendant, and for want of due care and attention by the said Grant, agent and servant as aforesaid, and the said defendant, the said plaintiff was violently thrown down on the embankment of the said railway of the said defendant, whereby the said plaintiff was greatly cut, bruised, and wounded, and had the leg and ankle of him, the said plaintiff, badly fractured and dislocated, so that he, the said plaintiff, became and was sick, lame, and unable to walk.”

The defendant denies the material allegations of the complaint, and avers as matter of defense “(2) that, if plaintiff was injured, it was through the negligent act of a fellow-servant in the employ of defendant's company, for which defendant is not responsible; (3) that the plaintiff contributed by his own negligence to his injury, by jumping off a train while in swift motion, and by obeying commands which were manifestly dangerous, according to his own allegation, and by other negligent and careless acts; (4) that the complaint does not state facts sufficient to constitute a cause of action.”

At the trial, the court submitted to the jury the following issues, to which they responded as indicated at the end of each: “(1) Was Grant the superior of the plaintiff, as stated in the complaint, whose commands the plaintiff was bound to obey, as alleged in the complaint? Yes. (2) Did the said Grant command or order the said plaintiff to jump from the car of the defendant while it was running at a swift rate of speed? Yes. (3) Was the plaintiff injured thereby? Yes. (4) Did the plaintiff know that it was dangerous to jump from the car while it was running at a swift rate of speed? Yes. (5) Could the plaintiff, by exercising the care of a man of ordinary prudence, have known it was dangerous to jump from the car while it was running at such a rate of speed? Yes. What damages has the plaintiff sustained, if any? Damages, seven hundred and fifty dollars.”

Upon these findings, the plaintiff moved for judgment, but the court gave judgment for the defendant.

It appears from the case stated on appeal that there was evidence that the plaintiff was employed as a section hand by one Grant, who was master of a section on the railroad of the defendant, between Marion and Old Fort; that he (Grant) had control of the section hands and discharged hands, and had a right to require obedience to his orders. The proof showed that plaintiff was not acquainted with railroad work or trains; had been in the employ of the company only three weeks prior to the wrong complained of; that the duty of the plaintiff as a section hand was to work repairing the road, to man the dump car used by the section hands; that Grant had four hands on his section; and that it required four hands to handle the dump car used by the section hands. Plaintiff testified that he was a novice at the business; did not know the danger involved in jumping from the car while moving the day he was ordered by Grant to jump; that Grant told Godfrey, another section hand, to jump first, but Godfrey did not jump. The plaintiff's ankle was dislocated and exhibited. The physician testified that the injury was permanent.

The plaintiff stated that, when witness was fixing to jump off, Grant told him to be careful, there was danger of getting hurt, but witness did not know it until he jumped off. The train was running fast. Counsel suggested, “Very fast.” Witness said, “Pretty fast.” Witness heard Grant tell Godfrey to jump off, and he did not do it. After witness was hurt, he supposed it was because Godfrey thought there was danger in it; did not ask Godfrey why he did not jump; that when plaintiff was fixing to jump, Grant told him to be careful; that he (plaintiff) was careful as he could be. He said Terrell, the engineer, was the first to come to him after he was hurt; that Terrell then said: “Don't know what Grant was thinking about to tell him to get off while the train was in motion.” Terrell said that Grant said he would tell one of the hands to get off, and help fix the dump car. Witness knew the car was going to stop on the top of the grade.

It was in evidence that Terrell, the engineer, was that day running an extra freight; that Grant had received orders to take his men, and help put on some old tracks; that Grant took two of his section hands, and put them on the train at Old Fort, to be carried to the dump or section car; that the dump car was on the side of the railroad track, about half way up the grade east of the Catawba-river bridge; that, before leaving Old Fort, Grant asked the engineer of the freight train to stop at the dump at Hemphill's crossing, that the section hands might get off and put the dump car on the track, so as to accompany the freight train to the track; that the engineer refused, alleging that he was too heavily loaded to stop on that grade, as he could not start again, and was obliged to keep up mountain. There was evidence on the part of the defendant, by Grant, that was contradictory of the plaintiff's testimony; that Grant told the plaintiff and Godfrey, at Old Fort, that, when the freight cars stopped at...