Snipes v. Camp Mfg. Co.

• Decision Date: 25 February 1910
• Citation: 67 S.E. 27,152 N.C. 42
• Parties: SNIPES v. CAMP MFG. CO.
• Court: North Carolina Supreme Court

67 S.E. 27

152 N.C. 42

SNIPES v. CAMP MFG. CO.

Supreme Court of North Carolina

February 25, 1910

Appeal from Superior Court, Halifax County; O. H. Guion, Judge.

Action by one Snipes against the Camp Manufacturing Company for personal injuries. From a judgment of nonsuit, plaintiff appeals. Reversed.

Where defendant's, engineer, after stopping the engine, went forward with his fireman to where workmen were repairing a trestle, and then returned to the engine and started it without any warning, whether the fireman was guilty of contributory negligence in sitting on the track just ahead of the engine, conversing with workmen, without noticing the movements of the engineer, was a question for the jury.

The evidence tended to show: That defendant was a manufacturing company, operating a logging road under a charter, etc., and that on June 21, 1907, plaintiff, employed as fireman on defendant's engine, was run over by said engine and seriously injured. That at the time of the occurrence the engine in question had stopped at a trestle which was being repaired, and the engineer and plaintiff, and others of the crew, went forward 15 or 20 feet on the trestle to observe the work and note its progress. Plaintiff sat down on a cross-tie, and he and the engineer were both talking to some of the track force. That while plaintiff was so engaged the engineer went back to his engine, started it without signal or warning of any kind, and moved the same upon the plaintiff before he was able to arise or escape, and causing the injuries complained of. The track was straight, and the position of plaintiff at the time being in full view or readily observable.

The plaintiff, a witness in his own behalf, among other things testified as follows: "Q. State whether in June, 1907 you were in the employ of the Camp Manufacturing Company? A. Yes; I was. Q. What were you doing? A. I was firing an engine for them in 1907. Q. What was the Camp Manufacturing Company doing with this engine? A. Hauling logs out. Q. On their private road? A. Yes. Q. Who was engineer under whom you were firing? A. Mr. Lonnie Spivey. Q. State to the court and jury whether or not you were injured about the 21st of June, 1907. A. On the 21st of June, 1907, the train ran over me. I was on the trestle. Q. State how you came to be on the trestle, and the entire facts and circumstances. A. I was firing the engine in 1907, June 21st, and they went down hill to a good long trestle, and the engineer, of course, he stopped. He had a signal to stop. He got down and went in front of the engine, and was talking with one of the section boys, and I got down off the engine and went between him and the engine and I sat down between the rails, straddled a cross-tie, with my feet hanging down. There was a pair of mules in front of me and all of the hands, I can't tell how many. I wasn't paying any attention to anything else. Mr. Spivey and Mr. Butts passes right by me and gets on the engine. I was there running on with them, talking while they were working, and Mr. Spivey and Mr. Butts gets up and goes to the engine--pass right by me--and Mr. Spivey didn't say come on, he was going, or nothing. He never blowed whistle nor rung the bell or gave a signal. He just moved the engine off over to where they were hauling, and, when I saw the engine, she was within five or six feet of me. I got up I was so scared, and I didn't know any more after I got up. Q. What did the engine do to you at the time it struck you? A. She ran over me. Q. How did it run over you? A. It just knocked me down, my feet went through the trestle, and the pilot pushed me down and rolled me across the ties until I got to the place where the ties didn't give way or anything, and they had to back the engine off me. I was stopped by those ties. Q. How did it injure you? A. It broke my right ankle and broke me in two--twice in my breast. It broke three ribs in my breast and six in my back and my right shoulder blade. Q. Describe what was hitched to the engine, if anything. A. Nothing at all, just the engine and tender. Q. When you got off the engine and sat down on the track, about how far in front of the engine was it that you sat down? A. About 15 or 20 feet. Q. How near was the engine to you when you saw it moving up on you? A. About five or six feet. Q. How were you sitting at the time when you first saw that engine moving upon you-- what was your position on the track? A. I was sitting straddled of one of the ties with my feet hanging down over the trestle. Q. Where did you say the team of mules were working? A. They were working right in front of me. Q. What kind of work were they doing? A. They were working on the trestle doing something. The mules were dragging some logs. Q. Where was your attention directed--which way were you looking? A. I was looking right down at the mules and the men that were working. Q. About how high was this trestle? A. It was about six or seven feet. Q. You say the engineer got up and passed by you? A. Yes. Q. Was he going towards the engine? A. Yes, sir. Q. Had he been sitting or standing? A. I couldn't tell whether he was standing or sitting. Q. Did you see him any more after he passed by you? A. No, sir. Q. You didn't see him get up on the engine? A. No, sir. Q. What did he say to you when he passed by you? A. Nothing at all."

At the close of plaintiff's evidence, on motion, plaintiff was nonsuited by order of court, and excepted and appealed.

E. L. Travis, Claude Kitchin, and Geo. Green, for appellant.

W. E. Daniel and B. B. Winborne, for appellee.

HOKE J.

The court is of opinion that on the facts and circumstances as now presented there was a duty imposed upon the defendant's engineer to give a signal or some adequate warning before starting the engine, and that on the ordinary issues in actions of this character, and under various decisions of this court applicable to the case, if these facts and circumstances are accepted by the jury, the verdict as to defendant's negligence should be resolved against the company. Farris' Case, 151 N.C. 483, 66 S.E. 457; Ray's Case, 141 N.C. 84, 53 S.E. 622; Smith's Case, 132 N.C. 819, 44 S.E. 663, essentially qualifying, if it does not expressly overrule, this same case as it appears in 130 N.C. 344, 42 S.E. 139.

And the court is further of opinion that on the facts in evidence, if established, the ordinary inferences permissible where one goes on a railroad track do not obtain here, and that it was not a negligent act on part of plaintiff in going forward on the track, nor in taking the position described in the testimony. So far as these facts now disclose, the only engine whose approach was to be apprehended, and the one which caused the injury, was then at rest, and the entire crew, including the engineer himself, had gone forward to observe the men engaged in repairing the trestle and note the progress of the work; and the only conduct, if any, which could be imputed to plaintiff for negligence on this evidence, was in not getting up from his position when he saw the engineer leave the trestle and return to his engine. Whether, under all the facts and circumstances as they may be received by the jury, this was negligence on part of plaintiff, and the...