Pyatt v. Southern Ry. Co.

• Decision Date: 10 September 1930
• Docket Number: 556.
• Citation: 154 S.E. 847,199 N.C. 397
• Parties: PYATT v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

154 S.E. 847

199 N.C. 397

PYATT v. SOUTHERN RY. CO.

No. 556.

Supreme Court of North Carolina

September 10, 1930

Appeal from Superior Court, McDowell County; Harding, Judge.

Action tried to the court and a jury, brought by Walter Pyatt against the Southern Railway Company. Judgment for plaintiff and defendant appeals.

No error.

This is an action for actionable negligence brought by plaintiff against defendant. The defendant denied negligence and also set up the plea of assumption of risk and contributory negligence. The evidence of plaintiff was to the effect: That he worked on the Asheville division of the defendant company near the ninety-seventh milepost, east of Marion junction. When he was injured on May 28, 1928, he was a laborer and with three others was working under J. E. Sigmon, who was section foreman or boss, and whose orders he was in duty bound to obey. The place was on a curve and the track the trains came on could be seen about 150 to 200 yards each way from the place they were working. About 20 trains passed over the track each day. A rail on the north side of the curve the outside rail on the track, had become defective or worn and had to be removed and a sound rail put in its place. The new rail, weighing about 900 pounds, was brought by the crew and put in the center of the track south of and two feet from the worn rail to be removed, and about seven inches had to be cut off to fit and allow for expansion and contraction. This took about 30 or 40 minutes. After this was done, two of the laborers were sent in opposite directions with red flags to protect the workmen from the coming of trains. To remove the worn or defective rail, the laborers with the crowbars pulled out the spikes on the inside of the rail, one of the laborers worked on the east and plaintiff on the west, taking off the bolts and angle bars that fastened the worn rail to the adjoining rails. When this was accomplished, the foreman gave orders that one of the laborers go to the east and plaintiff to the west and knock the rail in. The rail was tight, and usually when knocked loose would recoil or rebound. When plaintiff started to do this, the foreman was opposite from the direction he was going.

"When he told me to go and knock that rail loose, he called me and said, "Walter, hurry up and get your bolts out and your angle bars off, and let's get this rail removed.' *** In an effort to knock it loose at the end, I struck it some three or four times. I struck it with a ten-pound hammer. We usually use that size hammer for such work. I struck it as hard as I could. At the time I was knocking at the end of this rail with my hammer, I was standing with my back toward the foreman, Mr. Sigmon, I really don't know where he was then or what he was engaged in. *** After I dealt these blows to the end of the rail and it wouldn't move, I stepped over inside. I thought there might be a spike that probably wasn't pulled. Sometimes where the timber was not so sound, the tie plate was cut down and the rail was wedged against the wood. Sometimes you have to cut the wood. If there are spikes, of course, they have to be removed before it will move. Just after I made the step the rail hit me. Just as I stepped over the rail I didn't see what the section foreman was doing as that rail struck me. At the time the rail struck me, the best I could tell it was rebounding. The rail struck my foot three times. It seemed like it paralysed me for a moment so that I couldn't move and when I did move, I found that my ankle was over. The rail rebounded, moved backwards and forwards, but I couldn't say how many times. To the best of my knowledge, it struck me three times. The rail couldn't possibly have rebounded before it was made loose in the position in which I was working at the time. It was not released by the blows which I dealt it at the end; it was released by some other means. *** After I struck I saw Mr. Sigmon and Mr. Swafford standing near the center of the rail with crow-bars in their hands. They were on the outside of the rail. The rail had moved from them. *** There was nobody else in a position that they could have moved the rail except Sigmon and this other hand with the crow-bars. *** So we put this new rail that was going to take the place of the old one right there in a convenient place on the track where we were going to take out the old rail. This was the main line of the Southern Railroad, standard gauge track, and to the best of my knowledge, it is about 56 inches--four feet and eight inches, to be exact. This was a very sharp curve. As to your question, the greater the curve, the greater the danger from removing rails after being confined for sometime, that they will kick back; that depends on how tight the track is. *** I suppose John Swafford went to work at his end. I didn't see him. I couldn't do the work I was required to do there in a hurry and watch somebody else three feet away from me. Part of the time my back was to him and I was changing positions there. I don't know that I even glanced up while I was taking the bolts out to see what anybody else was doing. Why should I be interested in what they were doing? I was trying to do the work I was assigned to do, and I couldn't do that and watch what somebody was doing. I didn't see that it was necessary. When I saw the rail wouldn't move I looked to see what was the matter and also to see what the foreman would say. When I looked up the rail struck me. ***

"Q. If you had continued to stand where you were ordered to stand, and should have stood in order to knock this rail loose, you wouldn't have been injured? Answer: I don't know. I had orders to knock it loose. I didn't knock it loose. I knew that this rail that was to be removed was a tight rail. I knew that a tight rail might rebound. And knowing that I was trying to remove it, and I had orders to remove it, that Swafford had orders to knock it loose at the East end, and without knowing what the other men were doing, I put my foot in there between this rail and the other rail on the track. I was doing my ordinary duties. *** I was not there knocking any longer than it took to make three licks. When I turned around to step between the track I was facing South. And looking South, I couldn't see the other hands and see what they were doing. If I had looked up I could have seen them. I never saw them until after the rail struck me. They were standing near the center of the rail with bars in their hands. *** At the time Mr. Sigmon told me to go to the West end of the rail and knock it loose with my hammer, he did not have the crow-bars under the rail. He was standing straight up. He didn't have his crow-bars at the rail to my knowledge. I was there where I could see him.

"Q. What notice, if any, did you have that the rail was going to be removed by the crow-bars until it was moved? Answer: I didn't know that it was going to be moved at all until it struck me.

"(Cross-examination) I said I didn't know the rail was going to be moved. I went there for the purpose of removing the rail. I didn't know they were going to throw the rail over on top of me without warning me. I saw the crow-bars laying around on the ground. Sigmon didn't have any crow-bars in his hands. I knew that in removing rails that were tight on a curve they used crow-bars, but they generally say something about it when they get ready to use them. That is the only time I ever knowed he missed it. I depended on warning. I knew they always used crow-bars in removing tight rails when they wouldn't come out by knocking with the hammer."

It was in evidence that plaintiff worked off and on for defendant as a laborer for some 27 years, and the last five and a half years regularly.

John Swafford, one of the section crew, a witness for defendant, on cross-examination was asked: "Do you think it is dangerous to shove a rail in with crow bars without warning all the people within reach of it that it would be dangerous? Answer: Well, it is dangerous all right."

The evidence on the part of defendant was to the effect that plaintiff was ordered to go to the west and on the north side of the worn or defective rail and knock the rail loose, and if he had obeyed these instructions he would not have been injured. That he knew at the time this order was given him that the foreman and another were using the crowbars at the middle of the rail to prize the rail loose, and with this knowledge he stepped over between the rail being removed and the new rail, and was injured by his own negligence. That he knew from his experience the rail when released would recoil or rebound. That he abandoned the place of safety on the north side of the rail, where he was ordered by the foreman to stand and knock the worn or defective rail loose, and with knowledge of the peril and risk abandoned his place of safety and voluntarily stepped into a place of danger and was injured; and assumed the risk.

The issues submitted to the jury and their answers thereto, were as follows:

"1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

"2. Did the plaintiff assume the risk as alleged in the answer? Answer: No.

"3. Did the plaintiff, by his own negligence, contribute to his injury, as alleged in the answer? Answer: Yes.

"4. What damage, if any, is the plaintiff entitled to recover? Answer: $5,000.00."

S. J. Ervin and S. J. Ervin, Jr., both of Morganton, for appellant.

D. L. Russell, of Hickory, and Dillard S. Gardner and W. T. Morgan, both of Marion, for appellee.

CLARKSON J.

The defendant, at the close of plaintiff's evidence, and at the close of all the evidence, made motions for judgment as in case of nonsuit. C. S.§ 567. The court below overruled...