Appeal
from superior court, Wayne county; Robert W. Winston, Judge.
This
action is brought to recover damages occasioned by the
alleged negligence of the defendant. The latter, in its
answer, denies the material allegations of the complaint, and
alleges contributory negligence on the part of the plaintiff
which directly brought about the injuries complained of. The
court submitted the following issues to the jury: "(1)
Was the plaintiff injured by the negligence of the defendant?
(2) Was the plaintiff guilty of contributory negligence? (3)
What damage, if any, is the plaintiff entitled to
recover?" To the first of these issues, the jury
responded "No." There was no response to the second
and third. On the trial the plaintiff was examined as a
witness in his own behalf, and testified as follows: "I
was injured on the railroad from Winston to Wilkesboro, in
October, 1890. I had been working for defendant since July 7
1890, and had been a railroad hand for seven years. I do not
know the rate of speed of the train on which I was at the
time, but it was very fast,-faster than mail trains run.
Looked like the world was turning round. It was an awful
crooked road; not one-half mile of it straight. It ran with
the Yadkin river. It was a mountainous, hilly country, and it
was a new road. The track was pretty rough. I was thrown off
the train. The train went to Elkin, and laid over. There was
a side track there long enough to hold the train, but the
conductor came out, and we went on. The train ran fast. It
was a material train made up of flat-cars and a shanty-car. I
was employed on the train as a laborer. I was at the rear end
of the shanty-car, near my bunk on the inside of the car. I
got scared and uneasy, and came to stove in middle of car.
There were two other men in the car, sitting on seats, blocks
of wood, on either side of the door, which was open. The door
was on the side of the car. The right-hand man got up, and I
went to take his seat, and as I raised my foot the train made
a swift curve, and switched me out of the door. I moved from
the end of the car because I was afraid; and if she jumped
the track I could jump out. I thought it would turn over
because the road was rough, crooked, and the train running
fast. I was flung down a fill in the weeds and stunned for a
few minutes. Broke my arm and hurt me inside. Hurt me for
life-time, I think. Two doors to shanty, one on each side.
Window in each end of car. One door was open and the other
closed. Flat-cars were in front of the shanty-car." On
cross-examination the witness said: "I had been over
that road often. Knew that it was pretty rough and had short
curves. Had been over that curve often, and knew it well. Was
sitting between the bunks on block of wood, near rear of car.
Nelson Smith and Martin Holt were in the car with me. The
left-hand door was partly open, and they were sitting on
blocks of wood near the door. Blocks were not fastened. I
went to the open door to get out if she slacked up. Martin
Holt got up from his seat. Nelson Smith did not get up. There
was a stove in the middle of the car between the doors. I
went to take Martin Holt's seat. Went on side of stove
next to open door. Right-hand door was shut. I tried to get
hold of the stovepipe as I was falling. I could have gone by
the closed door and reached the block if I had thought of it.
That was the safest way, and if I had thought it was going to
jerk I would have done it. The train came back and took me
up. I did not tell Dr. Dalton at the depot in Winston, on
October 29, 1890, that the train was running twenty-five
miles an hour." There was other evidence that need not
be reported. There were divers exceptions to the instructions
the court gave and others it refused to give at the instance
of the plaintiff. These need not be reported, for reasons
stated in the opinion of the court. There was judgment for
the defendant, and the plaintiff appealed to this court.
Affirmed.
Plaintiff
an experienced railroad laborer on defendant's road, who
knew that it was rough and crooked, was riding in a material
train running very rapidly. He was in a closed car, having a
large opening in one of its sides, and moved from the rear of
the car, where he was protected, towards the stove, located
in the center; and as he passed by the opening, the train
made a swift curve, which threw him out of the car. Held
that plaintiff was guilty of contributory negligence in
passing by the opening without supporting himself, when he
might have reached the place he intended to occupy by passing
along the side of the car opposite to the opening.
The
fact that plaintiff left his position of safety in the rear
of the car through fear of an accident, and to be near the
opening, so that he might jump off the car in case of an
emergency, does not relieve him...
