Sawyer v. Roanoke R. & Lumber Co.

Decision Date11 September 1907
PartiesSAWYER v. ROANOKE R. & LUMBER CO.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Beaufort County; W. R. Allen, Judge.

Action by J. L. Sawyer against the Roanoke Railroad & Lumber Company for personal injury alleged to have been caused by defendant's negligence. Judgment for plaintiff. Defendant appeals. Affirmed.

See 55 S.E. 84.

There was evidence tending to show: That in May 1904, plaintiff was run over and seriously injured by a logging train of defendant company, while he was in the employment of the defendant and engaged in cutting out its right of way. That defendant had constructed a railroad track of iron rails from Slatersville, a station on the Norfolk & Southern, to a tract of timber about five miles out, and at the time of the injury was engaged in operating a logging train, by which the logs as they were cut and loaded, were hauled over the spur track to Slatersville, and thence over the line of the Norfolk & Southern to Plymouth, where defendant's mill was situated. That the plaintiff was with a gang of hands engaged in cutting out a right of way through this timber, and as this was done another gang would lay the track, when the train-consisting on this day of a locomotive and several logging cars-would be moved backwards down the track, and the timber logs that had been cut from and on either side of the track were loaded onto the train. That this loading was done chiefly by a skidder, a machine which was placed on the rear car, being in front as the train was moving-a large machine consisting of an engine, cable, etc., which was inclosed in a building or large box several feet wider than the car on which it was placed, and 8 or 10 feet high. This box inclosing and protecting the machinery, had a door and perhaps a window at the rear, from which those who were engaged in operating the skidder could, when required, look down the track, and there was a door and steps for entrance at the front of the skidder. That several hands were required to operate the skidder when the loading was being done, and some were on the car at the time of the injury. That when the track was laid the engine would back the train along the same, and the skidder would draw in and load the logs from either side of the track onto the logging cars. That some of the hands were engaged in the woods, some cutting the right of way, some were engaged with another machine at the end of the track, and plaintiff himself, with one Billie Boyd, was engaged in grinding plaintiff's ax some 10 or 12 feet from the track, when a thunder and rain storm came up, and plaintiff and Boyd started along the track toward the skidder, with the intention of going into the same for shelter. The train and the skidder on the front car was at this time being backed down the track toward plaintiff at the rate of about 2 miles an hour, and could have been stopped within a distance of 15 feet. That as plaintiff and Billie Boyd were so moving down the track to take protection in the skidder they were struck by a bolt of lightning; Boyd being instantly killed and plaintiff knocked down and rendered unconscious, remaining so until he was run over by the train. The place where the plaintiff fell and remained upon the track was 75 yards ahead of the moving train, on a straight track, and in view of the hands and employés in the train, if any had been looking. Three issues were submitted: (1) As to defendant's negligence; (2) contributory negligence on part of plaintiff; (3) damages. Under the charge of the court there was verdict for the plaintiff. Upon judgment thereon defendant excepted and appealed.

Even if one was negligent in going on the track of a logging railroad, yet there was no contributory negligence on his part; he having been struck by lightning and rendered unconscious, and the train which ran over him having been far enough away and going slow enough to have allowed him to be seen and train to be stopped in time to avoid the accident had a lookout been kept.

Small & MacLean, for appellant.

Bragaw & Harding, Nicholson & Daniel, and Ward & Grimes, for appellee.

HOKE J.

The judge below imposed upon the defendant the duty of keeping an outlook along the track in the direction in which the train was moving, and in this connection charged the jury that, if they found the facts to be that the defendant company was operating a railroad for the purpose of hauling logs, and operating an engine and cars, the law imposed upon it the duty to keep a lookout for the purpose of avoiding injury to persons on the track apparently unconscious, and if it failed in this duty it was negligent, and if such failure was the real and proximate cause of the plaintiff's injury they would answer the first issue "Yes," etc.

It is urged for error that, on account of the remote placing of this occurrence, with no one ahead along the track, or likely to be there, except its own employés, whom they had every reason to believe were there alive and in health and in proper possession of their faculties, the judge should have charged the jury that upon the entire testimony, if believed there was no negligence shown on the part of the company, and the jury should answer the first issue "No." But we are of opinion, and so hold, that the charge of the court correctly expresses the law applicable to the case, and that this assignment of error cannot be sustained. These logging roads, in various...

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