Smith v. Richmond & D.R. Co.

• Decision Date: 26 March 1888
• Citation: 5 S.E. 896,99 N.C. 241
• Parties: SMITH v. RICHMOND & D. R. Co.
• Court: North Carolina Supreme Court

5 S.E. 896

99 N.C. 241

SMITH v. RICHMOND & D. R. Co.

Supreme Court of North Carolina

March 26, 1888

Appeal from superior court, Durham county; J. H. MERRIMON, Judge.

Action for damages for personal injuries, brought by L. T. Smith against the Richmond & Danville Railroad Company. Verdict and judgment for defendant. Plaintiff appeals.

Plaintiff who was familiar with the method of the night mixed freight and passenger trains in D., and knew that there was more bumping and jolting in the coupling of such trains than on passenger trains, was sitting on the arm of a seat, when the engine, with the freight car attached, was thrown back with a sudden shock, causing plaintiff to be thrown against the corner of the seat in his rear, and injured. Held, that plaintiff was negligent.

W. W Fuller, for appellant.

C. M Busbee, for appellee.

DAVIS J.

Civil action to recover damages for personal injuries, tried before MERRIMON, J., at January term, 1888, of Durham superior court. The plaintiff alleges that in June, 1887, he entered the regular passenger coach attached to the freight train of the defendant, at Durham, for the purpose of going to Hickory, and by the negligence of the defendant company he was seriously injured while in said coach at Durham. The defendant company denies negligence, and alleges that the injury received by the plaintiff, if any, was caused by his own negligence. The following issues were agreed upon: (1) Was plaintiff injured by defendant's negligence, as alleged in the complaint? (2) Did plaintiff's negligence contribute to his injury? (3) If so, was plaintiff's negligence the proximate cause of the injury. (4) What damage, if any, has plaintiff sustained?

The plaintiff entered the coach at Durham on the morning of the 15th of June, 1887, and his testimony is as follows: "I got to Hickory the afternoon of June 15th, leaving Durham on the freight. I went to the depot to take the train about 3 o'clock in the morning of the 15th. A man in the railroad uniform, who I think I saw afterwards taking up tickets, and whom I took to be the conductor, was asked by me if that was the place to get on, and he replied that the train would soon pull down in front of the ticket office. It was then just below, east of the ticket office. Pretty soon it did pull down, and he told me we could get on, and he assisted my wife to get on. When they pulled down, the engine and freight cars were cut loose, and were carried forward, and thrown back on a side track. That was the condition of the cars when we got on. This train was the regular early morning freight, with passenger cars attached. It had a sleeper and first and second class and baggage cars. It may have had the mail car, but I can't say. I bought tickets at the regular ticket office to Hickory for my wife and myself,--first-class. I got in the first-class coach, and walked back near the middle, and took a seat in the regular way. About that time, Mr. Cheek, a friend of mine, came in. I got up, and passed the usual salutations. I then sat down on the arm of the seat, my feet on the floor of the aisle, my elbow on the back of the seat, my hand clutching around the corner of the back of the seat next to the aisle, my wife sitting on a seat on opposite side of the aisle, one or two seats in my rear. I had been sitting there may be a minute or more, when a sudden shock came. The engine, with the freight cars, were thrown back against the coach, and I was thrown back against the corner of the seat in my rear. I was sitting on the arm of the seat, and the seat next in front was turned towards the rear of the coach, and the seat next in front was turned forward, bringing the backs near together. I had no warning of the approach of the train. My wife was thrown forward, striking her knee against the seat in front of her, bruised her knee, and caused her knees to swell. When I was thrown against the corner of the seat, the first sensation was a very painful one, with an indentation of the rib, and the second effect was to cause severe nausea. The general effect was to lay me up in bed with a severe wound for nearly three weeks, and since that for five weeks. I have not been able to do regular work; have not been able to get to my store to see patients; I have also had an attack of jaundice, that I attribute to this cause, which I have not been able to get clear of. I suffer acute pain all day of the injury. Got to Hickory about 2 P. M. Rev. Mr. Hord assisted me beyond Salisbury. He was on the train when I got on. I was not able to make an examination of myself for three or four days because of the pain. I found a considerable enlargement of some of the internal viscera,--any pressure would produce nausea. I believe the rib was fractured. Symptoms were acute pain, especially upon any movement. The pain still continues on pressure, but not so severe. I was in bed two weeks in June. My condition was very painful; no rest night or day; could not dress for the pain; not a moment since without pain; my health has been very poor ever since. The jaundice was produced by it. I have been using internal and external remedies. I have had medical attention. I have tried to the best of my abilities to cure myself. Cross-Examined. I went to Hickory in spring of 1885. I was suffering from inflammatory rheumatism, and had been suffering for several years. I suffered in my legs, arms, and shoulders, and once in the intercostal muscles. Since 1885, I have not suffered anything like so much; have been much improved, and laid aside my crutches, and walked with a stick. I did not have as good use of myself, on account of the inflammatory rheumatism, as I would have had without it. My locomotive powers were affected by it. I was familiar with the methods of the night freight in Durham. I had traveled on it several times before. The train generally stays at Durham some time, shifting and coupling. There is a great deal more jolting and bumping in the coupling of freight trains than in passenger trains, and I knew this at the time. I knew, when I got on the arm of the seat, that the freight cars had not been coupled to the passenger coaches, and that they were to be coupled. Before I met my friend I had been sitting in the seat. I have traveled frequently on freight trains, and on this train, but the shock was more severe than usual."

Dr N.M. Johnson: "A practicing physician eleven years. Have examined Dr. Smith since his injury,--about fourteen days after,--a knot on the rib. It looked like the rib was either partially or wholly fractured. He says he suffers. He looks like he suffers. If he has not...