Smith v. Atlanta & C. Air Line R. Co.

• Decision Date: 06 June 1903
• Citation: 44 S.E. 663,132 N.C. 819
• Parties: SMITH v. ATLANTA & C. AIR LINE R. CO.
• Court: North Carolina Supreme Court

44 S.E. 663

132 N.C. 819

SMITH v. ATLANTA & C. AIR LINE R. CO.

Supreme Court of North Carolina

June 6, 1903

Appeal from Superior Court, Mecklenburg County; Shaw, Judge.

Action by Fred Smith against the Atlanta & Charlotte Air Line Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Evidence considered, and held that it was a question for the jury whether, if plaintiff's negligence contributed to his injury, defendant, by the exercise of ordinary care, could have avoided the injury.

Geo. F Bason, for appellant.

Burwell & Cansler, for appellee.

CONNOR J.

The plaintiff, being in the employment of the lessee of the defendant, was, on the date of the injury complained of, sent to paint switch targets, and at the time of the injury was painting a target, the center of which was 4 feet from the center of the west rail of the defendant's track. The flange of the switch target extended from the center of the target toward the rail 6 inches. The engine extended over the track and towards the switch target as follows: Tender frame 23 1/2 inches; punch pole, 24 inches; the step between the engine and tender, 29 inches; and the cylinder, 26 inches. While engaged in painting the target, the plaintiff set his bucket, containing paint, down near the rail. A shifting engine and tender were passing back and forth over the tracks, and, just before this engine reached the point where the plaintiff was at work, he reached over to put his brush in the bucket, and was instantly stricken by the shifting engine, which was backing up towards him.

The plaintiff put in evidence certain rules of the defendant company, Rule W being: "Whenever any person, animal or other obstruction appears upon the track, or so close thereto, as to be in danger, then instantly the following precautions must be observed: First, the alarm whistle must be sounded; second, the brakes must be applied; third, every other possible means must be employed to stop the train and prevent the accident. If there is time, all of these requirements must be complied with. If by reason of the speed of the train, or the suddenness of the obstruction, only a part of these precautions can be observed, then such of them as under the particular facts of each case are best calculated to prevent a possible accident, must be observed." "Rule 66. The unnecessary use of the whistle is prohibited. When necessary in shifting at stations and in yards, the engine bell shall be rung, and the whistle used only when required by rule or law or when necessary to prevent accident." "Rule 121. In all cases of doubt or uncertainty, take the safe course and run no risks." The plaintiff testified: That he was familiar with these rules, and that the switch engine was moving backward and forward in the yard of the defendant's tracks. That he went to work, and put his bucket right down beside the switch, and started to paint the target. Had been engaged in the work about 10 or 15 minutes when the engine came and knocked him down. That is the last he remembers. That he heard no bell ringing, or any whistle blown, or any warning of any kind given. That he was stricken about half an inch from the left temple on the forehead, going across the top of his head, and the bone on the left eye was broken or injured and he was thrown on the right side of his shoulder, and was stricken across the breast, and suffered from his chest for a long time afterwards. Witness illustrated to the jury his position, and that of the target and of the engine. Said he was relying on the rules, of which he knew, for his protection. That it was impossible for him to do the work well, and at the same time keep a constant lookout for the movements of the engine. That, if he put his whole attention on the painting, he could not be on the lookout all the time. When he looked down, he looked both ways. Looked down, and did not see any engine. Thought he could get through painting before the engine came out of the coachyard, and, if it did come out, he expected it to ring the bell or blow the whistle to give him warning. It was necessary for him to keep his eye on the target while he was painting, because there were two colors. Had been employed by the defendant company for about three years. Says he did not hear the bell ring. That he put his bucket over next to the rail; illustrating the position in which he stood, and the point at which he put his bucket, by means of photographs offered in evidence. The track was pretty fair, level and straight. On redirect examination, plaintiff stated that, when he was doing this work in the manner he had shown the jury, he was relying upon the rules of the company and the ordinance of the city of Charlotte for his protection. Would not say that he had nothing else in mind. Thought, if the engine came, it would give some signal to get out of the way.

Plaintiff introduced Sherman Ludwick, who testified that he was a short block from where the plaintiff was painting. Saw him painting the target. When the train passed up the track and struck Mr. Smith, the witness heard them "holler." Saw the engine. Heard no bell ringing. No bell was ringing. Could have heard it if it had been. The train was running 25 or 30 miles an hour.

The plaintiff introduced Kerry Reynolds, who testified that he was about 100 feet from the plaintiff at the time of the injury. The train was running 30 miles an hour. He says he saw that the plaintiff was in danger, and "hollowed" at him twice to look out, and about that time it struck him.

Thomas Robinson, introduced by the plaintiff, says: That he was working 15 or 20 feet from the plaintiff. That the switch engine was coming from the depot with a sleeper, and when it went down the main line it came in the coachyard. The witness was busy wiping off the coach. The plaintiff was painting. The last witness saw the plaintiff, the engine was as far as from "here to the middle of the street," and the witness heard Grant Wallace "hollow," "I think we have struck Mr. Smith." "I looked around at the engine, and saw Grant pull the bell cord, and saw the plaintiff. Did not hear bell ring until after the plaintiff was struck. Could have heard it ring. The train was moving 20 or 25 miles an hour. The engineer was on the opposite side from the plaintiff. Saw nobody on the left-hand side. The fireman did not seem to be in his place."

M. L. Harris, witness for the plaintiff, testified that the train was running 10 to 15 miles an hour. Heard no bell. Could have heard it if it had been ringing. Heard no whistle blow.

The defendant introduced the engineer, who testified: That he saw the plaintiff painting, and passed him several times--"I reckon, a dozen times;" that he was not in his way, and, if he had stayed where he was when the witness saw him, he was perfectly safe. He was perfectly safe where he was painting, as long as he stayed there. The tender obscured his view about 60 feet before he reached the plaintiff. Engine was backing. The bell was ringing. That he was about 400 feet from the plaintiff when he first saw him. If there had been any danger, could have stopped. A man could stand between the target and the rail and let an engine pass. "I have seen it done. No part of the engine struck him. It was the corner of the tender--what is called the 'pole socket."'

The defendant introduced J. F. Boyd, who stated that he was painting targets on the morning of the injury, and that it required no skill to do so. Witness was about 100 feet from the plaintiff. Witness illustrated how he would paint a switch target without any danger to himself.

There were several other witnesses whose testimony tended to sustain the contentions of the plaintiff and the defendant.

The plaintiff offered in evidence section 299 of the ordinances of the city of Charlotte, prohibiting the running of trains at a greater rate of speed than four miles an hour in the corporate limits of the city. At the close of the plaintiff's testimony, the defendant made a motion to nonsuit, which was denied. At the close of the whole evidence, the motion to nonsuit was renewed and overruled and the defendant excepted. We concur with his honor in his ruling upon this motion. There was evidence sufficient and competent to be submitted to the jury upon the issues raised by the pleadings. He submitted the following issues: "(1) Was the plaintiff injured by the negligence of the defendant's lessee, as alleged in the complaint? (2) Did the plaintiff by his own negligence contribute to his injury, as alleged? (3) If the plaintiff's negligence...