Walker v. Carolina Cent. R. Co

• Decision Date: 01 June 1904
• Citation: 47 S.E. 675,135 N.C. 738
• Parties: WALKER . v. CAROLINA CENT. R. CO.
• Court: North Carolina Supreme Court

47 S.E. 675

135 N.C. 738

WALKER .

v.CAROLINA CENT. R. CO.

Supreme Court of North Carolina.

June 1, 1904.

master and servant—defective machinery —negligence—proximate cause of injury — jury questions — contributory negligence—instructions—defect in form—assumption of risk—bight of railway company to plead.

1. Evidence in an action by an employe of a railroad company for injuries from a defective sand drier examined, and held to entitle plaintiff to go to the jury on the questions of negligence and proximate cause.

2. While an instruction to the jury in a personal injury case to answer the issue of contributory negligence, "No, " is bad in form, yet it is not ground for reversal where there is in fact an entire absence of evidence of contributory negligence.

3. Under Priv. Laws 1897, p. 83, c. 56, depriving railroad companies of the defense of assumption of risk, a railroad company cannot plead such defense to an action by an employe for injuries from a defective sand drier.

Appeal from Superior Court, Mecklenburg County; Neal, Judge.

Action by William Walker against Carolina Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action on account of personal injuries received by the plaintiff through the negligence of the defendant. The evidence tends to prove that the plaintiff's clothing caught fire from a defective sand drier which he was operating in the performance of his ordinary duties. The issues and answers thereto were as follows: "Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer. Yes." "Did the defendant by his own negligence contribute to his own injury? Answer." "What damage has the plaintiff sustained? Answer. $900."

The only assignments of errors are as follows: The defendant requested the court to charge as follows: "There is no evidence of negligence of the defendant corporation, and the jury will answer the first issue, 'No.' " His honor refused to give this instruction, to which refusal the defendant excepted. The defendant further requested the court to charge as follows: "There is no evidence that the hurt done to the plaintiff was caused by the negligence of the defendant and the jury is therefore instructed to answer the first issue, 'No.' " His honor refused to give this instruction, and to this refusal the de fendant excepted. Upon the second issue his honor charged the jury as follows: "There is a second issue: 'Did the plaintiff by his own negligence contribute to his own injury?' And the court charges you, upon the testimony, to answer that issue, 'No.'"

The plaintiff testified that he had been working for the defendant in the same capacity for 3 years, and had worked with the machine in bad shape for 30 days; that he had called the attention of the master machinist—the "boss man"—to the defects in the drier, and he had patched it up. Being asked to describe the machine, he did so as follows: "There was a kind of bowl or hopper, with legs to it; kinder like a stove. Hopper was in the shape of a sugar-loaf hat, and stood on a foundation. Underneath was holes the size of a silver dollar. Sand ran out of hopper through these holes. In the foundation was a door. The foundation was brickwork. There was a furnace underneath there, and above the foundation. This was made of cast iron. Hopper was made of wire, and was funnel-shaped. Don't know what kind of wire; good-sized wire. You put the fire in a door when the machine was in good order. Put the sand—wet sand—in there to be dried. When it was dry the sand came out from the edges of the door all around where the holes were. Had to get down and shovel it out where I could sift it. Took it out with a large scoop. Machine had a pipe on it when it was in good shape, a good while ago. Pipe extended out through the top of the house. The sand drier was in a house; pretty good house; one room and had a partition—a kind of sand bin. He had took and patched it. The top rim of the bowl had fallen down on the bottom. They had took some of this old sewer pipe and patched it where it had fell in, and daubed it up with mud, and left the stack off of it. There...