Smith v. Atlanta & C.R. Co.

• Decision Date: 17 June 1902
• Citation: 42 S.E. 139,130 N.C. 344
• Parties: SMITH v. ATLANTA & C. R. CO. [a1]
• Court: North Carolina Supreme Court

42 S.E. 139

130 N.C. 344

SMITH v. ATLANTA & C. R. CO. ^[a1]

Supreme Court of North Carolina

June 17, 1902

Appeal from superior court, Mecklenburg county; Hoke, Judge.

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

Douglas J., dissenting.

A railroad leasing its road to another company is liable to a servant of the lessee for injuries caused by the lessee's negligence in the operation of the road.

Geo. F Bason, for appellant.

Burwell Walker & Cansler, for appellee.

MONTGOMERY J.

According to the plaintiff's evidence, he was engaged in painting what is known as the "switch target" on one of the tracks of the defendant in its depot yard at Charlotte, the target being about four feet off from the rail, and that in doing his work he was compelled at times to put himself in danger of passing trains; that the track where he was at work was straight for several hundred feet, and there was no obstruction to the view in either direction along the track and that while he was engrossed in his work, and inadvertent to one of defendant's shifting engines, the engineer, without signal of bell or whistle, ran him down and injured him. His honor thought, upon the plaintiff's own evidence, that the plaintiff contributed to his own injury, and so instructed the jury; but at the same time said that such contributory negligence would not prevent the plaintiff's recovery if the jury should find that the engineer knew or could have seen that the plaintiff was in danger, and inadvertent to the approach of the engine, and ran the engine down the track and upon the plaintiff without giving notice of the approach by proper signals. The imputed negligence of the defendant is clearly stated by his honor, and, as the charge on that contention of the plaintiff is the vital point in the case, we will give the whole of it: "A breach of duty that was imputed to defendant in this case was that plaintiff was engaged in performing his work; that he was in a position of danger, and so near the track that he was liable to bring about a position of danger; that he was in a position of danger; that he was absorbed in his work in which he was engaged, and that that must have been evidence to the employés of the defendant on that engine; and while he was in a dangerous position, and evidently unaware of the approach of the engine, that this defendant, through its agent, ran that engine on him without giving him any warning or signal of its approach, and that he was knocked down and injured severely by it, and that was the proximate cause of the injury. If the jury find by the greater weight of the evidence that that is true; if you find that plaintiff was there in what you find was a dangerous proximity to that rail, and that, being engrossed in his work, he was inattentive to the approach of that engine as it came down the track; and you...