Pruitt v. Southern Ry. Co

• Citation: 83 S.E. 350,167 N.C. 246
• Decision Date: 11 November 1914
• Docket Number: (No. 324.)
• Parties: PRUITT. v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

83 S.E. 350

167 N.C. 246

PRUITT.

v.SOUTHERN RY. CO.

(No. 324.)

Supreme Court of North Carolina.

Nov. 11, 1914.

1. Appeal and Error (§ 979*)—Verdict—Review—Weight of Evidence.

Whether a verdict is against the weight of the evidence, is a matter for the conscience and sound discretion of the trial court, the exercise of which will not be reviewed on appeal, in the absence of a showing of abuse of discretion.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3871-3873, 3877; Dec. Dig. § 979.*]

2. Railroads (§ 381*)—Crossing Accident-Injuries to Pedestrian—Projection from Train.

Where plaintiff, while standing at a public railroad crossing at a safe distance from a passing train, was struck about the knee by an object projecting from the side o£ the train, thrown to the ground, and his arm cut offby the wheels, he was not required to be on the lookout for such an object; defendant's liability being fixed by proof that a careful inspection of the train would have disclosed its dangerous character.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1285-1293; Dec. Dig. § 381.*]

3. Railroads (§ 364*) — Injuries — Persons Near Track—Inspection—Negligence.

Failure of a railroad company to make a proper inspection of enrs in a train and to discover an object projecting from the side of one of the cars was negligence.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1252, 1253; Dec. Dig. § 364.*]

Appeal from Superior Court, Rockingham County; Devin, Judge.

Action by Paul Pruitt against the Southern Railway Company, to recover damages for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

Manly, Hendren & Womble, of WinstomSalem, for appellant.

P. W. Glidewell, of Reidsville, and C. O. McMichael, of Wentworth, for appellee.

BROWN, J. The testimony of the plaintiff tends to prove that on the night of October 18, 1912, while standing at a public crossing in the town of Reidsville, some three or four feet from the track, waiting for a freight train to pass, he was struck about the knee by some projecting object that protruded from the side of the train, and was hurled from his feet, thrown under the train, and his arm was cut off by the wheels; that this object was at the end of a car and projected some four feet from side of the car. The plaintiff further testifies that he heard this projection rattling, and that he stepped one foot out of the way, and before he could get the other out of the way, it caught him about the knee and pulled him under a car, and his left arm was cut off at the shoulder. It is argued that the projecting object was a loose end of the rubber piping of an automatic brake, with an iron catch on the end.

There are two assignments of error, viz.:

(1) The court charged the jury as follows: "If you shall find by the evidence and its

greater weight that the railway company operated a freight train south through Reidsville with a rod or other unusual projection extending out from said car for a distance of three or four feet, near the ground; that the defendant knew, or by reasonable diligence could have known, of such projection, and if you further find from the evidence and its greater weight that such projection caught plaintiff and drew him under the train; that his injuries were sustained thereby—it would be your duty to answer the first issue 'Yes.' "

(2) The court refused to give defendant's prayer for instruction as follows:

"There is no sufficient evidence...