Pierce v. North Carolina R. Co.

• Decision Date: 07 March 1899
• Citation: 32 S.E. 399,124 N.C. 83
• Parties: PIERCE v. NORTH CAROLINA R. CO.
• Court: North Carolina Supreme Court

32 S.E. 399

124 N.C. 83

PIERCE v. NORTH CAROLINA R. CO.

Supreme Court of North Carolina

March 7, 1899

Appeal from superior court, Rowan county; Allen, Judge.

Action by J. A. Pierce, as administrator of the estate of Frank H Pierce, deceased, against the North Carolina Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This was an action for the recovery of damages for the death of the plaintiff's intestate, a boy of from 12 to 13 years of age, who was run over and killed by the defendant's engine and tender while shifting cars in the town of Salisbury. There was no exception to evidence. At the close of plaintiff's evidence the defendant moved to dismiss the complaint, and for judgment as of nonsuit. Motion overruled, and defendant excepted. The examination of other witnesses was then proceeded with, and at the close of the evidence the defendant asked for the following instructions in writing: "(1) There is no evidence of any negligence as alleged in the complaint, and the jury should find the first issue 'No.' (2) If the jury believe that the intestate of plaintiff was killed by the wanton, willful, and malicious act of one of the employés of the railroad company then the company would not be liable, and they should find the first issue in favor of the defendant, and answer the same 'No.' (3) If the jury find that the intestate's death was caused by the wanton and malicious act of the fireman, and that his act was not done in the furtherance of the business of the defendant, they should find the first issue in favor of the defendant, and answer the same 'No.' (4) It is incumbent upon plaintiff to show that the act of the defendant's servant was within the scope of his duties and authority, and there is no evidence that this was the fact. (5) The jury must find that the primary cause of the death of plaintiff's intestate was the act of the fireman in throwing coal or other missile at the intestate, before they can answer the third issue 'Yes.' (6) There is no evidence that the fireman of the defendant's lessee struck the deceased and knocked him off the steps of the tender. (7) The deceased was violating an ordinance of the town, and violating the law when he was killed, in swinging on the tender of the engine."

The court, after reading over the evidence to the jury, gave the following charge to the jury:

"You have heard the evidence as taken down read over. That is done for the purpose of refreshing your minds, as well as that of the court, and for the purpose of aiding the court in instructing you. You are to remember the evidence as it came to you from the witnesses on the stand, if there is any difference in the evidence as read over to you and the way you remember it from the witnesses. Upon this evidence these issues are submitted to you: (1) Was the plaintiff's intestate killed by the negligence of the defendant, as alleged? (2) Did the plaintiff's intestate by his own negligence contribute to his death? (3) Could the defendant, by the exercise of reasonable care and prudence, have avoided the injury, notwithstanding the contributory negligence of the deceased? (4) What damage is plaintiff entitled to recover? The burden is upon the plaintiff to show by a preponderance of evidence facts sufficient to enable him to recover. Upon the first, third and fourth issues, it is upon plaintiff. Upon the second issue,--that of contributory negligence,--the burden is upon the defendant.

"In this case the plaintiff contends: First that the deceased was not negligent, and that he was killed by reason of the negligence of the defendant, and that, even if the deceased was negligent, if you find that he was negligent, still defendant could have stopped the engine and put the boy off; and, second, that his death was due to the throwing of coal or missiles at him, which caused him to jump from the train or to fall from the train, and he was thereby killed. Now, the defendant denies this, and says that the engineer and fireman did not know that the deceased was on the tender, if he was on the tender, at the time he was killed, and that they were exercising reasonable care and prudence at the time of the killing; that the fireman did not knock him (they deny that) or frighten him off, or throw coal at him, or any other missile; and that the engine was so constructed that the fireman could not have thrown coal and struck him, or frightened him from the train, owing to what was, the defendant contends, the peculiar construction of the tender,--the defendant contending that it was so constructed that he could not have thrown coal according to the way in which the plaintiff say coal was thrown at him. The plaintiff contends that it was constructed differently from the way the defendant contends, and was so constructed that he could have seen the boy, and could at least have thrown over at him and struck him or frightened him. The defendant further contends that the deceased's negligence and his conduct was the sole cause of his death, and that the defendant is in no wise liable. A master--And, for the purpose of this case, when I speak of 'master' I mean the principal; and the railroad or the corporation would be a master in a case of this kind. A master is liable for the conduct of its agents or servants, when acting in the cause or scope of his employment or line of duty, and his wrongful acts are not in consequence of something outside of his duty. The defendant lessee would be liable for the violent or unlawful conduct of its employés on the shifting engine, when they were acting in the scope or line of their duty, and it is incumbent on the plaintiff to show this; and whether or not the lessee's servants on the shifting engine were guilty of violent conduct causing the death of plaintiff's intestate, and also whether such violent conduct, if you find there was such violent conduct, was committed by the engineer or fireman, or either of them, while serving the lessee, and while acting in the scope or course of their employment, are facts for the jury, to be determined upon consideration of all the evidence.

"In considering the first issue, as the issues are shaped in this case, you will not consider as to whether the negligence of the defendant was the proximate cause; but did the employés of the defendant kill the deceased, and were they guilty of negligence in doing so? is the inquiry. If you find that the defendant's lessee put an engineer and fireman in control of its shifting engine, and they were in control of it, and while they were in the discharge of their duty and acting in the scope and course of their employment, the fireman threw coal or other missiles at plaintiff's intestate, and you further find that the plaintiff's intestate was a boy between 12 and 13 years of age, or about 13 years of age, and that he was a trespasser, riding upon the tender without consent and without paying fare, and you find that by reasons of the violence so employed by the fireman the said boy fell from the tender, or was knocked off, or was caused to jump off the tender from fright, while the engine was in motion, and was thereby run over and killed, you will answer the first issue 'Yes,' provided the boy acted with reasonable care and prudence of a child of his age, if you find he jumped or fell from such fright. If the jury find that the fireman in the course of his employment as aforesaid used force for the eviction of the deceased from the tender in the manner just mentioned, and further that the engineer, by keeping a prudent lookout and using usual appliances, could have caused the removal of the deceased without injury by slowing up or by stopping the engine, it would be negligence, and you would answer the first issue 'Yes.' In dealing with a trespasser a party is not held to the highest degree of care, such as is due to a passenger, but he is required to exercise ordinary care; and if the servant or employé does not exercise ordinary care towards a trespasser while in the line of his employment, and injury result therefrom, the master is liable, unless the act of the servant is something outside of his employment and for his own purpose. If the deceased got upon the tender of the defendant while its engineer and fireman, in the course of their employment, were switching cars, without their knowledge or consent, and they could not by the exercise of ordinary care and watchfulness have seen him or known it, and whilst so upon it, or in attempting to get off of it, either from fright or any other cause not attributable to the negligence of the fireman or engineer, he jumped or fell, and was run over and killed, it would not be negligence, and you should answer the first issue 'No.' If the deceased was not upon the tender, but was along the track, and the engineer or fireman could not by the exercise of ordinary care and watchfulness have seen him, the first issue should be answered 'No.' After you have settled the first issue, if you answer it 'No,' you proceed no further; but, if you answer the first issue 'Yes,' then you proceed to the second issue.

"If the jury find that the deceased got upon the tender, without the consent of the engineer or fireman, while it was running over the defendant's track, then he was not only violating a town ordinance, but would be a trespasser, independently of that; and if the injury would not have occurred, but for his having gotten on, then he contributed to his injury and death, either remotely or proximately, and your answer to the second issue should be 'Yes.' If he was not on the tender at the time of the injury, but was negligently on the track, and killed, the answer to the second issue should be 'Yes.' The second issue is, did the plaintiff's intestate by his

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