Ridge v. Norfolk Southern R. Co.

Decision Date16 December 1914
Docket Number489.
Citation83 S.E. 762,167 N.C. 510
CourtNorth Carolina Supreme Court

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

Action by Grady H. Ridge against the Norfolk Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The doctrine of res ipsa loquitur held applicable to the case of an employee injured while on the top of a box car caused by the roof being blown off so that the question of negligence must be submitted to the jury.

Where the accident is such as in the ordinary course would not have happened if those having control used proper care, there is evidence, in the absence of explanation by defendant, that the accident arose from want of proper care.

This is an action to recover damages for injuries alleged to have been caused by defendant's negligence. The testimony of the plaintiff in his own behalf will sufficiently show the nature of the case and enable us to understand the exceptions. He is 23 years old. Had lived in Ashboro for about 17 years, and had worked for the Norfolk Southern Railroad Company, beginning on the 4th day of August, 1913. Started as flagman; did not have any special run, but was a new man and was put anywhere on the road when they had a vacancy. Didn't remember how many days he had worked from August 4th until October 20th. In August he drew $31 as his wages, and they paid him anywhere from $1.65 to $2 a day. After September his wages were right at $30, and in October $30. On the 20th of October he started out with a fellow Brown on a baggage run. Brown was showing him how to handle baggage on a passenger train from Fayetteville to Raleigh, on a Norfolk Southern train. Brown had held the baggageman's position, and was teaching the witness how to be a baggageman. They went to Raleigh, and on arriving they set off the passenger coaches and picked up a string of box cars and started back to Fayetteville. There was one passenger car on the train, and the conductor was Fred Jones. Witness was in the passenger coach when the train left Raleigh. Fred Jones, L. P. Brown, and a colored fellow, a brakeman, were in there with him. He did not remember the colored fellow's name. He went out of the passenger coach to a station or two along the road to help unload some stuff and set off some cars. Plaintiff was then asked the following question:

"Were you subject to the orders of the conductor? (Defendant objected, objection overruled, and defendant excepted.) A. Yes, sir; I was."

Plaintiff testified further:

"Just before they got to Cardenas, Brown himself and a colored brakeman were in the coach, and the conductor said 'Boys, go across and get ready to unload the freight at this station' (Cardenas). And these fellows started on and Brown said, 'Come on, Ridge.' So we started out; went on top of the box car. The train was in motion at the time, and the way you cross a box car is to get out of the coach, walk out on the platform, climb the ladder to the top, and then walk on top clear across, if there is nothing to prevent you. There is a walkway on top of the car for the passage of the railroad hands, and there was one on this car. We started across on the top of the car, and there was an oil tank on the train next to this box car, in front of it. We had to go across the box car to get to the oil tank, and these fellows had climbed down the ladder of the box car to get to the oil tank, and I was walking up toward the end where I had to get down, and I noticed some plank jumping up and down on the box car, but I didn't think anything about that, and I don't remember anything then until I came to myself. I was on the ground bleeding, with a box car on me. The last I remember was the planks jumping up and down. Then they took me on a freight train, and carried me to some station, and put me in a waiting room on a cot. And later there was a passenger train that came by, and I remember riding in a passenger coach, or baggage car, to Raleigh."

Plaintiff then stated the extent of his injuries, which were quite severe. He further testified that he had never been over that road before, and was being broken into the service as a beginner. It was a level country where the injury occurred. It was not blowing very hard, not so hard that it blew him nearly off the car. The wind was blowing to some extent. It had been blowing all day, but just a little now and then, and not steadily. He did not know whether the wind increased in velocity after he went out of the coach.

F. H. Jones, the conductor, testified in behalf of defendant:

"I had trouble in getting over; the wind was blowing so hard. I couldn't hold on, and a time or two I had to grab the running board, and crawl from one car to the other. It was a very hard wind. I did not look to see whether others were coming or not. We were running west at the time. I saw where the top of the car blew off. It was on the right of the railroad track, going west; the left side blew off. The top is made into two parts, with a slight shed on each side so that it will shed the water. Each half is separated from the other in the middle. I do not know how heavy the top is. It looked like pine with tin under it. It tore the tin off. I saw the rafters left on the car, and they looked to be in good condition; saw no defects in the wood or anything of that kind. * * * Ridge was learning to flag the road between Raleigh and Fayetteville. He was along with Brown so that he could learn his duties. There were 15 box cars on that train. None of the other tops blew off. I do not remember sending Ridge back to flag at tank. I didn't do it; didn't give him any orders at all. I did not send him back to flag at tank right out of Raleigh. There was a very hard wind blowing. I crawled over the car, and walked a little bit until the wind blew so hard that I had to grab the running board. I walked a step or two at the time, something like that; I did not look back to see the others. Brown was right behind me. Do not know how far the colored man was behind. Do not know whether all four were on the top of the car at the same time or not. The wind was coming from the south. That violent wind was blowing all day, and was harder after we left Raleigh. It was blowing harder at this place where Ridge was blown off than it was in Raleigh. The wind quieted down that afternoon. I do not know how a standard box car is built. I have seen them put together. I know the roof is nailed on. There is a tin lining underneath the wood, which extends all over the top of some cars; I think it did on this car."

There was much evidence pro and con in regard to the velocity of the wind and the condition of the car's top. R. H. Jones, defendant's witness, testified that the car returned to Raleigh "with the left-hand side blown off and one-half of the roof was gone," and there was evidence that the other cars, 15 freight cars in all, were not injured. The car in question was loaded with hay.

The court, in its charge, stated the contentions of the parties: The plaintiff's, that the top of the car was defectively constructed or out of repair, and by reason thereof the wind lifted it and threw it and him violently to the ground; and the defendant's that the car was not defective, but the wind was high and blew plaintiff off, and that it had carefully inspected the car. The court then drew the attention of the jury to federal Employers' Liability Act, reading section 1 to them, and charged them to inquire, under the issues, whether defendant had been guilty of negligence in any of the respects mentioned in that section, if they found that it was, at the time, engaged in interstate commerce, and that plaintiff, at the same time, was employed in such commerce, and particularly to inquire if defendant had exercised ordinary care (defining and explaining it) to see that the car was in reasonably safe condition, for the use of its hands, if they found that the car was defective and that it was the proximate cause of the injury. If the car was in a defective condition and defendant had not made a reasonable inspection of it, whereas, if it had, the defect would have been discovered, and that by reason of the defect, the top was blown off and against the plaintiff, so that he was thrown to the ground and injured, and that the negligence of the defendant in the particulars mentioned was the proximate cause of the said injury, they would answer the first issue, "Yes"; otherwise, "No." The court then fully stated and explained the defendant's evidence and contentions, and then gave this instruction, among others:

"Defendant contends, then, that you should find from the evidence that this was what is known as an unusual and extraordinary wind, and that the injury caused the plaintiff, if you find that it was caused by the removal of the car roof, was due to the unusual and extraordinary velocity of the wind, over which the defendant had no control and for which it could not, in the exercise of reasonable care, have provided. If you find from the evidence that on the occasion referred to the wind was unusual and extraordinary, and that the top of the car would not have been displaced and the plaintiff would not have been injured except for such unusual and extraordinary character of the wind--that is to say, if you find that the unusual and extraordinary character of the wind was the proximate cause of the plaintiff's injury--you will answer the first issue, 'No.' Now what is meant by a wind that is unusual and extraordinary? In the meaning of this instruction, an unusual and extraordinary wind is such as could not reasonably have been anticipated and expected by the defendant in the climate at the season of the year and in the section of

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