Smith v. Southern Rt. Co

• Decision Date: 17 December 1901
• Citation: 40 S.E. 86,129 N.C. 374
• Court: North Carolina Supreme Court
• Parties: SMITH v. SOUTHERN RT. CO.

40 S.E. 86

129 N.C. 374

SMITH

v.SOUTHERN RT. CO.

Supreme Court of North Carolina.

Dec 17, 1901.

RAILROADS — NEGLIGENCE — COMPLAINT — SUFFICIENCY—DEMURRER.

1. A complaint alleged that plaintiff went to the depot to receive freight for his employer, and was directed by the station agent to take the goods out of a car standing by the platform; that while he was in the car, unloading the goods, the defendant negligently attached an engine to the car, and commenced moving it, without notice to plaintiff; and he, believing the car was attached to a train, and that he would be carried away from his team and work if he did not step off at once, stepped off, and in so doing fell, and broke his hip. Held, that a cause of action is alleged, and a demurrer should be overruled.

2. The defense of contributory negligence must be pleaded by answer, and not raised by demurrer.

Cook, J., dissenting.

Appeal from superior court, Alamance county; Council, Judge.

Action by J. F. Smith against the Southern Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.

(1) Plaintiff alleges that the Southern Railway Company is a corporation, etc.

(2) That on December 28, 1897, the plaintiff, at that time in the employ of the Elmira Cotton Mills Company, went to the freight depot of defendant at Burlington, N. C, the lessee, as aforesaid, for the purpose of getting goods and freight at said station consigned to his aforesaid employers; that upon inquiry he learned from defendant's agent that the goods for which he had come were not in the depot, but were still in one of defendant's freight cars, which was moved to the siding nearest the platform, and the engine detached; that thereupon, at the Invitation and under the direction of and accompanied by defendant's agent, Charles Walters, he entered the car, and was proceeding to unload the goods, and when he, assisted by said Walters, had unloaded a few bales of said goods, the said Walters left, directing him to proceed and finish the unloading; that in unloading he would throw two or three bales from the car on the platform, and then go on the platform, and place these bales on a truck, and roll them to the opposite side of the freight depot, where his horse and wagon were, and then place them on the wagon, and then, returning, would enter the car to throw out more bales of goods; that while he was in the car, unloading the last of the bales that he intended to unload, he suddenly found that the car was in motion, and, upon looking out, found that it was attached to a train of cars, and apprehended that he was attached to a regular train; and, knowing that he was being delayed in delivering the goods to his employers, and thereby delaying the operation of their mill, and knowing that he was leaving his horse and wagon standing at the depot, that before said train had attained any speed, and while it was slowly moving by the depot, he attempted to step from the car in which he was to the platform of the depot, a distance of about 14 Inches, and in such attempt he was thrown upon the platform, and had his right leg broken, to his damage $1,000.

(3) That said accident and damage were caused by the negligence of defendant's servants in moving the car without first giving notice to the plaintiff, after having invited and directed him to enter the car for the purposes aforesaid. Wherefore plaintiff demands judgment for $1,000, etc.

Defendant demurs to the complaint for that the same does not set forth facts sufficient to constitute a cause of action: (1) It does appear from the allegations of the complaint that the injury sustained by plaintiff was not sustained by a moving of the car, as set forth in paragraph 2, but was sustained solely on account of the action of the plaintiff in stepping from the moving car without the command, advice, or consent of any employé of defendant. (2) It does not appear that the moving of the car by defendant was done with any Intention on the part of defendant of removing the car from the station, or was such as to put plaintiff under any apprehension that he would be carried from the station, or was negligent, or such as to free him from the imputation of negligence in stepping from the moving car. (3) The proximate cause of the injury, as set forth in complaint, was the action of plaintiff In stepping from the moving car to the platform, and not any negligent act or omission of defendant. (4) It appears affirmatively from the allegations of complaint that the plaintiff, in attempting to step from the moving car down to a platform without any sufficient cause therefor, and without the advice or command of any servant of the railroad company, was himself guilty of negligence, and such negligence caused the Injurycomplained of. (5) If the complaint of plaintiff does not set forth facts from which it necessarily appears that plaintiff was negligent (as defendant avers it does), then it does appear from said complaint that the injury was caused by an accident unforeseen, and not to be expected, and for which no blame or neglect attaches to defendant. Wherefore defendant demands Judgment, etc

C. E. McLean, for appellant.

P. H. Busbee and A. B. Andrews, Jr., for appellee.

MONTGOMERY, J. The effect of the demurrer is the admission of the facts stated in the complaint and in the light most favorable to the plaintiff. The plaintiff, an employé of the Elmira Cotton Mills Company, went to the depot and warehouse of the defendant in Burlington, with the team of the cotton...