Smith v. Seaboard Air Line Ry. Co.

• Court: North Carolina Supreme Court
• Writing for the Court: WALKER, J. (after stating the facts as above).
• Citation: Smith v. Seaboard Air Line Ry. Co., 109 S.E. 22, 182 N.C. 290 (N.C. 1921)
• Decision Date: 26 October 1921
• Docket Number: 253.
• Parties: SMITH v. SEABOARD AIR LINE RY. CO.

109 S.E. 22

182 N.C. 290

SMITH v. SEABOARD AIR LINE RY. CO.

No. 253.

Supreme Court of North Carolina

October 26, 1921

Appeal from Superior Court, Wake County; Connor, Judge.

Action by Oscar Y. Smith against the Seaboard Air Line Railway Company. Judgment for plaintiff, and defendant appeals. New trial.

Where judge is attempting to state the law on a particular branch of a case, he must state it correctly, and must not omit part of it for any material omission is an affirmative error.

Plaintiff brought this action to recover damages for personal injuries alleged to have been sustained at Sanford, N. C., July 18 1919, by being thrown from a standpipe while putting water in the tank of an engine.

Plaintiff testified that he was fireman on one of the engines being operated on the Seaboard Air Line Railway while under federal control, and that it became necessary for the engine to take water at Sanford; that the engine was properly placed, and he pulled the standpipe to the tender and around to the manhole and leaned against the standpipe to hold it down, and, as he pulled the lever to release the water, the standpipe exploded and threw him backwards. In explaining his position when leaning against the standpipe, plaintiff testified that he assumed a sitting posture. Plaintiff also testified that he had used this standpipe before the time of his injury; that he would pull the lever about halfway over and the water would come with a rush. The lever referred to was on top of the spout of the standpipe and was used to regulate the flow of water through the pipe and into the tank of the engine.

It will perhaps be better, or at least more accurate, to state the substance of the testimony for plaintiff substantially in his own language, or rather in that of his counsel as it is set forth in their brief, which we now do:

The plaintiff testified: That, at the time of his injury, he was temporarily performing the duties of a railroad fireman; that he was a locomotive engineer by trade and was employed on the Seaboard Air Line Railway on the 18th of July, 1919.

The plaintiff testified in part as follows:

The engineer ran up to the standpipe. He told me to take water on the tender, and I went to take water. He stopped the engine right even with the standpipe. I pulled the standpipe to the tender and around to the manhole and leaned against it to hold it down, and as I pulled the lever to release the water the standpipe exploded and threw me backwards. The standpipe that I was leaning against exploded. * * * Before the 18th of July, I took water the same way I was taking it when I got hurt. There was nothing unusual before this time. * * * I had seen different firemen take water at the same pipe, all the time. * * * I was taking water on this day the same as they were. I was taking it in the same manner as I had authority to take it. I was working the lever with my left hand. The lever works the valves that let the water flow in the standpipe. * * * And I pulled it out to get water. * * * As you pull it toward you it opens the valve and the water comes in. * * * There was no place on the side of the spout that you could put your foot on and hold the spout down in the tank. I was not aware of the fact that there was more pressure there than at any other standpipe. * * * I pulled the lever up halfway, and still holding it down I took a seat on the side and pulled the lever over, and that is when it exploded. That is the position I had always assumed. I mean by the explosion that the pipe burst and there was compressed air and water and it all came out at the same time. It was not solid force of water There was a gush of air. The air and water came out at the same time. Q. What kind of noise was it making? A. A blow and a sudden jerk. The blow was very strong and powerful. I had never heard anything like that at a standpipe before. It all happened at the same time. I do not know how high the standpipe was thrown by the explosion. The last I remember it was going up and I was going with it. Q. You stated, Mr. Smith, on cross-examination, that some time before that in resting on it you had felt it go down and come up; explain to the jury what it was doing? A. There was no force as there was that day. I don't suppose it ever raised four or five inches. I was leaning there on it and pushed it down. I could not have done it on the day of the explosion.

The defendant's witness J. L. Kelly testified, in part:

Something broke loose. I don't know what it was. It pitched him 15 feet high. * * * A whole lot of stuff went up there with him. It exploded and he went up in the air. I did not see anything but a little water come out of that explosion. No, that little water would not have exploded with the tank that way. No, I did not hear the water running in the tank before that. I saw the piece break just as it was pulled down. I don't know whether he had hold of the lever at that time or not.

The defendant's witness Yow testified, in part:

I guess this standpipe exploded as soon as he pulled the lever. Yes, it suddenly exploded. * * * It was about as quick as lighting. He had not more than got it down when he reached up and got the lever. Just as he pulled it, it exploded. I was struck with the water. This whole arm was up straight. The explosion took place as soon as this man pulled the lever down. From where they picked him up I should say he went 20 feet into the air. * * * I think he was thrown 50 feet.

The defendant's witness Gold testified, in part: That the column was 12 inches thick; that the ball was made of brass and was an inch thick. The ball was crushed and drawn in. * * * Mr. Owens, the pump repairer, was working on the same main that supplied this standpipe the day of Mr. Smith's injury. * * * Mr. Owens had the immediate supervision and upkeep of this standpipe.

Defendants offered the testimony of two eyewitnesses of the accident, neither of whom was connected in any way with the defendants, and they both testified that plaintiff straddled the spout of the standpipe and attempted to operate the lever while in that position. M. H. Gold, witness for defendants, testified that at the time of this accident he was division engineer in charge of the standpipe; that he went to Sanford on the day this accident occurred and after the accident; that he had been there two days before and the standpipe was in very good condition; that there were two grabirons on the spout by which you could pull it around, and there was sufficient room on the grabiron for a fireman to place his foot and hold the spout in position; that a fireman could stand on the tender and place his foot on the grabiron and hold the pipe in place; that by pulling the lever on top of the spout you could control the opening of the valve in the pipe so as to control the flow of water; that by pulling it gradually the water would flow gradually; that if the lever was pulled up suddenly that would throw the entire pressure on the standpipe and that would have a tendency to straighten the pipe out at the end. This witness also testified that he examined the standpipe after the accident and that there were no weak places in it.

D. T. Owens, witness for plaintiff, testified that he was pump repairer and on the North Carolina division of the railroad; that he remembers this identical standpipe; that he gave Mr. Gold notice of the condition of the standpipe before the accident; that every time he talked to Mr. Gold he spoke to him about the standpipe; that he told him he did not like it because it would give him trouble; that they were too weak for the pressure. The witness further testified that the trouble with the standpipe was that it was leaking. He said that he worked the lever on this standpipe and that by working it slowly it would let the water in gradually, and if you pulled the lever suddenly that would cause the water to rush up suddenly. This witness further testified that the standpipe was all right before plaintiff was injured; that it was in good working order and there was nothing about it that was broken; that he inspected it on the fourth of the month before the accident and put it in good condition; that after the accident he could find no defect except such as was caused by the spout flying up; that the tank is 70 feet high at Sanford.

At the conclusion of the evidence plaintiff admitted that he was employed in interstate commerce at the time of his injury, and, over defendants' objection, was permitted to amend his complaint so as to allege that defendants were engaged in interstate commerce, and that he was employed in such commerce.

The judge charged the jury, among other things, as follows:

"I instruct you that if you find by the greater weight of the evidence in this case that this plaintiff in the performance of his duty, after the engine had been placed opposite the water tank, took down the spout and placed the mouth of it in the tender in order that the water might flow, and further find that the usual and customary way was to pull the lever, and then find, gentlemen of the jury, that the plaintiff leaned his weight upon the spout in order to hold it in position, and you further find that when the water did come that it came in such a rush and force as to throw the young man in the air, and further find that the violence with which the water came was due to some defect in the apparatus, or was due to carelessness on the part of the defendant, and if you find that such negligence was the direct and proximate cause of the injury, you will answer both of the two issues, 'Yes.' "

The jury returned a verdict in favor of plaintiff on all the issues and fixed the damages at $40,000.

Judgment thereon, and defendant appealed, assigning...