Purcell v. Southern Ry. Co

• Decision Date: 21 December 1896
• Court: North Carolina Supreme Court
• Parties: PURCELL. v. SOUTHERN RY. CO.

26 S.E. 161

119 N.C. 728

PURCELL.

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

Dec. 21, 1896.

Master and Servant —Vice Principal — Negligence—New Trial—Misconduct of Jury.

1. A conductor, while in charge of an independent train, is vice principal as to a brake-man on such train.

2. Where a brakeman, in accordance with his duty, was about to uncouple a car, and the conductor uncoupled it, and started the train without notice to the brakeman, it constituted negligence for which the railroad company was liable.

3. In an action for injuries to a brakeman, caused by the negligence of the conductor, defendant was not prejudiced by an instruction that the conductor could change his own relation to the company, from that of alter ego to that of fellow servant of the brakeman, by volunteering to anticipate the plaintiff in the performance of his ordinary duty.

4. A verdict awarding damages cannot be impeached by evidence of jurors showing how the damages were assessed.

Appeal from superior court, Rockingham county; Hoke, Judge.

Action by D. E. Purcell against the Southern Railway Company for personal injuries caused by defendant's negligence. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

It appeared that plaintiff was a brakeman in defendant's employ; that at night he was standing on the rear end of a freight car, in a train, preparing to uncouple it from the car behind it that the train was still, or nearly still, at the time; that the conductor had, without plaintiff's knowledge, uncoupled the cars; and that, while plaintiff was thus preparing to uncouple the cars, the engineer, in response to signals by the conductor, suddenly started the car plaintiff was on, and those in front of it, throwing plaintiff to the ground and injuring him.

F. H. Busbee, for appellant.

J. T. Morehead. for appellee.

AVERY, J. The conductor, while in charge of an independent train, was a vice principal, and his acts were, in contemplation of law, the acts of the railway company. Mason v. Railway Co., 111 N. C. 482, 16 S. E. 698; Turner v. Lumber Co. (at this term) 26 S. E. 23. Strangers are warranted in assuming that the servants of a railway company will discharge their respective duties, and are not negligent in acting on that assumption. Tillett v. Railroad Co., 118 N. C. 1031, 24 S. E. 111. The servants themselves have the right to expect and demand that reasonable care be exercised by the company in providing for their protection. Mason v. Railroad Co., supra; Chesson v. Lumber Co., 118 N. C. 65, 23 S. E. 925. The conductor, who was the embodiment of the authority of the company, was negligent in ordering any movement of the train without warning to the plaintiff, if he had reasonable ground to apprehend that, without such caution, the plaintiff, acting within the scope of his ordinary duties, might be subjected to danger from such movement. Little v. Railroad Co., 118 N. C. 1078, 24 S. E. 514; Blue v. Railroad Co., 116 N. C. 955, 21 S. E. 299; Emry v. Railroad Co., 102 N. C. 209, 9 S. E. 139; Tillett v. Railroad Co., 118 N. C. 1031, 24 S. E. 111; Turner v. Lumber Co., supra.

Though there is conflict in the testimony as to the question whether the conductor was in the habit of taking the place of the brakeman by uncoupling cars, it was not disputed that it was a duty which the brake-man was accustomed to perform, and which he was...