Ridge v. City Of High Point

• Decision Date: 03 January 1918
• Docket Number: (No. 397.)
• Citation: 97 S.E. 369
• Court: North Carolina Supreme Court
• Parties: RIDGE. v. CITY OF HIGH POINT et al.

97 S.E. 369

RIDGE.

v.CITY OF HIGH POINT et al.

(No. 397.)

Supreme Court of North Carolina.

Nor. 13, 1918.

Appeal from Superior Court, Guilford County; Adams, Judge.

Action by Martha F. Ridge, as administratrix of Albert L. Ridge, deceased, against the City of High Point and others. There was a nonsuit as to the North Carolina Public Service Company and a judgment for plaintiff as against the other defendants, and they appeal. No error.

Plaintiff seeks to recover damages for the death of her husband, Albert L. Ridge, which she alleges was caused by the negligence of the two defendants. There was another defendant, the North Carolina Public Service Company, but a nonsuit was entered as to it.

The allegation of negligence is that the Tate Furniture Company piled lumber in Perry street, so near the track of the railroad company as to make it dangerous to passing cars and those operating them, and that this was also forbidden by an ordinance of the city of High Point, and that its codefendant permitted the lumber to be so piled, whereas it was required by its charter to keep its streets clear of obstructions, and to see that they were properly lighted.

There is no serious contention that the lumber was piled in the street and in close proximity to the tracks of the railroad company, and there was evidence tending to show that the plaintiff's intestate, who was the conductor of one of the trains then using the track, was knocked from his position on the side ladder by the lumber and killed. Early in the morning of June 1, 1917, while it was yet dark, the motorman, the intestate being in the cab with him, drove the engine from the Tate furniture factory to the High Point furniture factory, which was a short distance north of the Tate factory, to get a'box car which had been placed there several days before. The motorman testified that he had "no trouble" in passing the lumber that morning. The car was coupled to the engine, in front of it, so that it was pushed back along Perry street to Green street. The intestate, who was the conductor, got upon the step near the front of the box car, on the left side of it, and on the same side of the track where the lumber was piled. There was a handhold there for him to use. He took this position to attend to the switch and give necessary signals. It was his duty to take care of the front of the train. The motorman could not see Ridge from his cab except once, and that was when they were turning the curve near the High Point factory yard, but when the car straightened out he was not in the motorman's line of vision. The next time the motorman saw him he was lying on the ground near the lumber and was dying. The motorman stopped the train and went to his assistance, but he died soon after he reached him. As they went from Green street a few days before—May 28th or 29th—to the High Point factory, in order to take the car there and leave it, the car was behind the engine, and when the engine cleared the lumber pile the motorman noticed that the car dragged some of the planks from the pile of lumber, and Ridge, who was with him in the cab, "said something about the closeness of the lumber, that it was dangerous, and some one was going to be hurt, or something to that effect." There was evidence that there was sufficient light to see the outline of the pile of lumber as they approached it on their return, and the motorman testified that, as they went to the High Point factory that night for the car, they did not hit the pile of lumber, but it remained intact. There also was evidence that other lumber had been piled at or about the same place after they had carried the car to the Hight Point: factory. There was an iron stepladder at the other end of the car from where the intestate was standing, and next to the motor engine, and it extended to the top of the car. There was a stepladder to the top of the car on the side next to the Tate furniture factory, and a witness stated that, had he used this ladder or stood on the top of the car, his position would have been safe, as he knew of nothing on that side, and that he could have given signals from the top of the car, which could have been reached by the ladder. The two side ladders were "diagonally opposite, " and they and the steps and grabirons at the other ends werein good condition. There was other evidence bearing more or less upon the issues, but we have given substantially all that we deem necessary to an understanding of the real questions involved, and have endeavored to state it most favorably for the defendants.

The jury found by their verdict that defendants were each guilty of negligence which approximately caused the death of plaintiff's intestate; that he was not guilty of contributory negligence, and then assessed the damages. Judgment and appeal.

King & Kimball, of Greensboro, for appellant Tate Furniture Co.

Peacock & Dalton, of High Point, for appellant City of High Point.

Clifford Frazier and John A. Bar-ringer, both of Greensboro, for appellee.

WALKER, J. (after stating the facts as above). [1] The defendant Tate Furniture Company asked for certain special instructions, and the court, we think, gave those which were correct, or such parts of them as were proper, in the general charge to the jury. We cannot see why, in any phase of the evidence, the defendants were not jointly liable to the plaintiff for the death of her intestate, which was plainly caused by their united and wrongful act. We cannot understand why this case, upon its un-controverted facts, or upon the evidence, which in this respect bears all one way, is not brought thereby within the principles stated and applied by us in Gregg v. City of Wilmington and James F. Woolvin, 155 N. C. 18, 70 S. E. 1070. As to the Tate Furniture Company, there is the additional fact, which was not in the Gregg Case, that it was directly and intentionally violating an ordinance of the city of High Point when it piled the lumber in the street, and thereby obstructed it, and rendered it exceedingly dangerous to persons on trains which passed that point. In any view of the facts, whether by reason of...