Smith v. Atlantic & C. Air Line Ry. Co.

• Decision Date: 13 May 1908
• Citation: 61 S.E. 575,147 N.C. 603
• Parties: SMITH v. ATLANTIC & C. AIR LINE RY. CO.
• Court: North Carolina Supreme Court

61 S.E. 575

147 N.C. 603

SMITH v. ATLANTIC & C. AIR LINE RY. CO.

Supreme Court of North Carolina

May 13, 1908

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

Action by W. M. Smith, administrator of James Wright, against the Atlantic & Charlotte Air Line Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

While one who offers a witness presents him as worthy of belief and will not be allowed to impeach his veracity or ask questions for this purpose, a litigant may always show that the facts are otherwise than as testified to by his witness and he may do this by statements by the same witness, as well as by the surrounding facts and circumstances.

Civil action to recover damages for alleged negligent killing of plaintiff's intestate, tried at the January term, 1908. There was evidence on the part of plaintiff tending to show that in January, 1906, the intestate, engaged in his employment as one of a switching crew, was run over and fatally injured in the yard of defendant company, from which injuries he soon thereafter died. D. H. Plott, a witness for plaintiff, among other things, testified, in substance, that on the night of the occurrence witness was conductor in charge of the switching crew, of which deceased was then a member, and intestate in the line of his employment had thrown the switch and then took his position in front of the slowly moving engine, stepped on the foot board, reached for the grab iron, and, not catching anything, fell back on the track, and was run over and injured as stated. The witness further testified as follows: "After Jim Wright threw the switch, he stepped about three or four feet from the outside between the two rails, and stopped in front of the engine, between the rails, to get on. The engine was moving at the rate of between two and three miles an hour-not very fast. As we moved toward him, he stepped on the foot board. I was on the foot board on the engineer's side-on the west side as the engine headed south. He stepped on the foot board, and reached up as usual to catch the grab iron or something-whatever he could. He did not catch anything, and fell backwards in front of the moving train, and was run over and both legs cut off. *** I don't know why Wright did not catch the grab iron. A switch engine usually has a grab iron extending across over the top of end sill four or five inches high. The grab iron is usually on top of end sill, and by stepping on foot board you can catch grab iron. The engine we were using that night had a flag at each corner. There was no grab iron running across front of that engine on top of end sill." The witness further said that this had been a road engine changed for purposes of a switch engine by removing the cowcatcher and putting a foot board in front and had no grab iron, and that deceased at the time was acting in the line of his duty, and that brakemen in the performance of this duty properly took the position which was taken by the deceased on this occasion, and witness had done the same thing himself when engaged in this work. A witness by the name of L. J. Snipes, who was asked as to the customary position and method of brakemen in that yard in performing the duty in which the deceased was engaged at the time, said: "Always stand out in front, hold up one foot, and let the foot board pick you up. Sometimes you stand on the rail, sometimes on the end of cross-tie, and sometimes on track between rails. You catch from the end of tie if the foot board is in good condition. Grab iron is supposed to be there to catch to." It further appeared that at the time deceased stepped on the foot board he had a lantern in one hand, and a brake stick in the other, and the witness, Snipes, testified that both were supposed to be used by switchmen when engaged in this duty. Defendant offered no evidence. On the issue as to contributory negligence, the court charged the jury that the intestate was required to act with due care and circumspection, and left it to them to determine whether, on the facts and circumstances indicated, the intestate was in the exercise of such care at the time, and declined to charge, as requested by defendant, that on the entire evidence, if believed, the intestate was guilty of contributory negligence. There was verdict for plaintiff, and defendant excepted and appealed.

W. B. Rodman, for appellant.

Burwell & Causler and Stewart & McRae, for appellee.

HOKE J.

It was admitted on the argument that defendant company was negligent in failing to provide an engine properly equipped for the work in which the intestate was engaged, and it is urged for error that the court declined to charge, as requested by defendant, on the issue as to contributory negligence, and this chiefly on the following statements appearing in the cross-examination of the plaintiff's witness D. H. Plott "Q. You made a statement immediately after this accident, did you not? A. Yes. Q. I will ask you if, in this statement, you did not say this: 'The foot board was in good shape. This negro knew as well as I did that there were no grab irons on this engine. I had warned him half a dozen times and told him to be careful'? (Plaintiff objected to this question because he has offered no testimony to prove that his intestate was ignorant of the fact that this engine was not equipped with grab irons, and because witness has not sworn that the plaintiff's intestate knew that there were no grab irons on the engine, or that he had warned said intestate that there were none, and that he should be careful on that account. Objection overruled. Plaintiff excepts.) A. Yes; I made that statement. Q. I will ask you now if you had not warned Wright numbers of times that there were no...