Renn v. Seabd. Air Line Ry

• Decision Date: 17 November 1915
• Docket Number: (No. 259.)
• Citation: 170 N.C. 128,86 S.E. 964
• Court: North Carolina Supreme Court
• Parties: RENN . v. SEABOARD AIR LINE RY.

86 S.E. 964

170 N.C. 128

RENN .

v.SEABOARD AIR LINE RY.

(No. 259.)

Supreme Court of North Carolina.

Nov. 17, 1915.

Brown and Walker, JJ., dissenting.

Appeal from Superior Court, Wake County; Daniels, Judge.

Action by J. T. Renn against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant appeals. No error.

This is an action to recover damages for personal injury caused, as the plaintiff alleges, by the negligence of the defendant. The original complaint is as follows:

(1) That he is, and at the times hereinafter mentioned was, a resident of Wake county, N. C. (2) That the defendant is, and at the times hereinafter mentioned was, a corporation existing and doing business under the laws of the state of North Carolina, and was operating a line of railroad in the state of North Carolina and in the state of Virginia, and elsewhere. (3) That on the 14th day of January, 1912, the plaintiff was in the employment of the defendant, and in the discharge of the duties of his said employment it became and was proper and necessary for the plaintiff to traverse a certain piece of ground beside the railroad track of the defendant and within its right of way at or near the station known as Cochran, Va., and to do so hurriedly in order to get aboard a train of cars then and there being operated by the defendant; that at the said time it was snowing, and the ground had become and was covered and hidden by snow; that the defendant had carelessly and negligently caused, permitted, and allowed water to be poured or spilled upon theground at said place and to become frozen, thereby covering the ground for a considerable space with a sheet of ice, and the defendant had negligently permitted and allowed the said ice to be and remain upon the ground at the said place, and to become and be covered and hidden by the snow, and had thereby negligently caused a highly dangerous condition to exist, and the said place and condition was highly dangerous and perilous, and the defendant had negligently failed to warn the plaintiff in any manner of the existence of said danger; and on account of the negligence of the defendant in the particulars aforesaid, the plaintiff, while proceeding along the said ground in the exercise of ordinary prudence and care, and without notice, knowledge, or information or warning of any kind of the existence of said danger, was caused to slip and fall heavily upon the ground, and thereby his collar bone and other bones were injured and dislocated, and he was bruised and wrenched and strained and sprained, and he was caused to suffer other serious, painful, dangerous, and permanent injuries to the muscles, bones, nerves, and ligaments of his body, head, and extremities, and caused to suffer much pain and anguish of body and mind. (4) That on accornt of the negligence of the defendant as aforesaid, the plaintiff has been damaged in the sum of $10,000. Wherefore the plaintiff prays judgment that he recover of the defendant the sum of $10,000 damages, and the costs of this action, and that he have such other relief as may bo proper.

The plaintiff offered evidence tending to prove that he was a resident of the city of Raleigh, N. C., and in the employment of the defendant as repairer of its pumps between Raleigh, N. C., and Richmond, Va., and in the course of his employment was ordered by the defendant to go, as he did, from Raleigh, N. C., to Cochran, Va., to repair one of the pumps used by the defendant in connection with its line of railroad from Raleigh to Richmond; that he arrived at Cochran after dark; that the station building there is on the west side of the track; that across the track to the east there is a water tank, which was used to supply water to engines of the defendant operating between Richmond and Raleigh; that the ground upon which the foundation of the tank is built is a couple of feet or more lower than the track; that southwardly from the tank is a toolhouse which is about ——feet from the tank, and about——feet northwardly from the tank and located in a depression is the pump-house; that water pumped from the pool beside the pump up to the tank; that the railroad beside the pumphouse was on a fill some —— feet high; that there was a path or way leading directly down from the track to the pumphouse, but this was quite steep; that there was another path leading from the pumphouse southwardly, parallel with railroad track and up the incline and around behind the tank, then between it and the tool-house and up to the railroad track and across to the station; that this was the usual path used by pedestrians in going back and forth between the station grounds and the pump, and the plaintiff was in this path when he fell; that upon his arrival that night the plaintiff left the train on the western side, went around the engine and down to the pump; that he then discovered that, to make the repair, he would need a four-inch flange union, and he recalled that the company had one at Skelton, Va., that a work train of the defendant was standing on the track beside the station and about to leave (southbound) for Skelton, Va., and Norlina, N. C.; that the plaintiff, in company with the pumper, Lewis, and the section foreman, Parks, in charge of that section, left the pumphouse for the purpose of boarding the train and going for said flange union; that the pumper led the way, carrying in his hand a lighted lantern, the plaintiff following a few feet after him, and the section foreman, Parks, following a few steps behind the plaintiff; that they traversed the above-mentioned usual path, and were still in the same and within a few feet of the railroad track when the plaintiff fell; that the path up to that point had been rough; that the weather had been cold for some time, and there had been snow on the ground, which had partly melted during the days and froze again during the nights after being tracked, and hence was roughened; that during the day of the night on which plaintiff's injury occurred the defendant's pumper had unnecessarily allowed the pump to run long after the tank was filled with water, and caused the tank to overflow for several hours, and this water which had overflowed had spread and frozen upon the ground and pathway at the place where the plaintiff fell, leaving a smooth, slick surface, dangerous for the use of pedestrians; that snow had been falling for an hour or two before plaintiff's fall, and this had covered the smooth ice, and plaintiff could not see it, and knew nothing of the presence of the ice; that he did not know it was there, and could not discover it by the use of his sight, and that he had never seen ice there before; that the defendant had never permitted the formation and accumulation of ice there before; that he was walking in a carefull manner, watching his footsteps by the aid of the lantern in front of him; that neither the pumper nor the section foreman, Parks, had in any way warned him of the condition of said pathway, and that Parks knew it existed, as he had been present at the station all during the day and had seen the water overflowing for a long time and freezing, as aforesaid; that Parks had there present all during the day a section force of eight men and only three of them had been occupied during the day, and the work train had been at that station for several hours with its crew of hands, and none of them had removed the ice or roughened it, or placed any substance upon it to make the footing safe, and the ice covered at that point the usual path for approaching the train from that side of the station; that the plaintiff slipped on the ice and fell and was seriously injured.

The plaintiff introduced a witness by the name of Parks who was present at the timethe plaintiff was injured, and testified as to the condition of the ground, of the weather, and to other circumstances including that of the tank running over. He was asked the question, "Why was the tank running over?" and he replied, "Because the pumper was neglecting his duty and let it continue to run after the tank was full, " and the defendant excepted.

At the conclusion of the evidence the defendant moved for judgment of nonsuit upon the following grounds: (1) That the evidence disclosed a right of action under the federal Employers' Liability Act, and that the complaint did not state a cause of action under this statute; (2) that there was no evidence of negligence. The plaintiff contended that the complaint was sufficient and stated a cause of action under the federal act, but asked leave to amend by alleging that the plaintiff was employed in interstate commerce at the time of his injury. The defendant objected to the amendment as it appeared that it was asked for more than two years after the injury occurred. The amendment was allowed, and the defendant excepted. His honor then overruled the motion for judgment of nonsuit, and the defendant excepted. The defendant then filed an answer pleading the statute of limitations and assumption of risk as defenses. The defendant requested his honor, in apt time and in writing, to charge the jury, if they believed the evidence, to answer the issue as to the assumption of risk in the affirmative. This was refused, and the defendant excepted. His honor charged the jury among other things, as follows:

That the. employer is not a guarantor of the safety of the place of work or of the machinery and appliances of the work to he done by the employe. (The extent of its duty to its employs is to see that ordinary care and prudence are exercised to the end that the place in which the work is to be performed may be safe for the workman.)

To the foregoing charge in parenthesis, defendant excepted.

His honor also instructed the jury to answer the issue as to the statute of limitations in the negative, and the defendant excepted. The jury returned the following verdict:

(1) Was the plaintiff injured by the negligence of the defendant'.' Answer: Yes.

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