Tanner v. Hitch

• Decision Date: 06 March 1906
• Citation: 53 S.E. 287,140 N.C. 475
• Parties: TANNER v. HITCH et al.
• Court: North Carolina Supreme Court

53 S.E. 287

140 N.C. 475

TANNER v. HITCH et al.

Supreme Court of North Carolina

March 6, 1906

Appeal from Superior Court, Edgecombe County; Webb, Judge.

Action by David Tanner against Frank Hitch and another. From a judgment for defendants, plaintiff appeals. New trial ordered.

Where a master undertook to furnish his laborers transportation on his log train to and from their lodgings, and a servant while so riding, was injured by reason of a defective car, an instruction, in an action for such injury, that when plaintiff went on the car for the purpose of riding, he assumed the risk of all the dangers incident to riding on a log train, was misleading, and should have further stated that plaintiff assumed no risk, which was incurred by reason of a defective car.

Action to recover damages for personal injuries tried before Webb J., and a jury at Fall term, 1905, of Edgecombe superior court. The plaintiff was employed by the day to haul logs for the defendant. His lodgings provided by the defendant were at Speed some five miles from the scene of the logging operations. The defendant transported the plaintiff to and fro daily on his log train, which went to the woods empty in the morning, and returned loaded in the evening. On the last return trip in the evening, the plaintiff and other daily laborers rode on top of the loaded log cars back to their lodgings. There were no other cars on the train. There was evidence tending to prove that one of the standards for holding the logs in place on one of the cars was gone, and its place supplied with a knot or shoulder insufficient for the purpose. The plaintiff had taken his place as usual on this car to return to his lodgings, and the logs tumbled off because of the absence of the corner standard, and threw the plaintiff in front of the car and crushed his leg. There was evidence tending to prove that one Armstrong was general superintendent of all the logging operations, and that one Richardson had charge of the train and its crew, and loaded it with a logging machine, and whose duty it was to see that the cars were safely loaded. The plaintiff had no connection with the operations of the train or loading it. The following issues were submitted: (1) Was the plaintiff injured by the negligence of either defendant? If so injured, by which defendant? (2) Was the plaintiff guilty of contributory negligence? (3) If the plaintiff was so injured, what damage has he sustained? From the judgment rendered the plaintiff appealed.

W. O Howard, for appellant.

J. L Bridgers, for appellees.

BROWN J. (after stating the case).

1. The contention that the fellow servant act (Revisal 1905, § 2646) applies to the defendant the Frank Hitch Lumber Company cannot be determined upon the face of the record. The two defendants filed separate answers, and that of the lumber company specifically denies that it owned or operated the logging railroad mentioned in the complaint. The answer of Frank Hitch states that he personally owned and operated the road himself. No appropriate issues were tendered by the plaintiff or submitted by the court, and consequently this necessary fact is left undetermined. The act referred to applies only to "any railroad company operating in this state." In order to pass upon this important question, so far as the defendant company is concerned, it is essential to ascertain the truth of this contested fact, and further that its charter should be in evidence to the end that the court may see whether it is a "railroad company" within the meaning of the statute. The name gives no indication, and the record is silent, except the testimony of the plaintiff that some of the cars were labeled "Frank Hitch Lumber Company." It does not necessarily follow from the label on the car that the defendant company was operating this road, although, unexplained, it is some evidence of that fact.

2. His honor instructed the jury that when the plaintiff went on the log car for the purpose of riding he assumed the risk of all the dangers incident to riding on a log train. As a general statement of the law this proposition is correct, but it does not go far enough, and was liable to mislead the jury. The judge should have further stated that the plaintiff assumed no risk which was incurred by reason of a defective car. There was evidence tending to prove that one of the standards used to hold the logs securely in place was gone, and there was no evidence that the plaintiff was apprised of the danger, liable to result, when he mounted the loaded car. Inasmuch as it was the master's duty (he having undertaken it according to the plaintiff's contention) to furnish his laborers transportation on his log train to and from the "quarters," it was his further duty to see that such transportation was rendered as reasonably safe as the character of it would admit. While the plaintiff assumed the risks incident to riding on loaded log cars, he...