Wallace v. Seaboard Air Line Ry. Co.
| Citation | 54 S.E. 399,141 N.C. 646 |
| Parties | WALLACE v. SEABOARD AIR LINE RY. CO. |
| Decision Date | 28 May 1906 |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; Cooke, Judge.
Action by Sarah A. Wallace, as administratrix of M. T. Wallace deceased, against the Seaboard Air Line Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Deceased a switchman, was directed by the conductor to couple certain cars to a flat car loaded with lumber. The conductor did not stop the train, and deceased attempted to get down on the front of the lumber car by taking hold of a cross-piece nailed to standards, which pulled out, causing deceased to fall on the track. The evidence was conflicting as to the proper mode of doing the work, or whether he should have climbed to the ground from the ladder of the adjoining car and coupled the cars from the side. Held, that deceased was not negligent as matter of law.
Plaintiff administratrix sues for damages sustained by the death of her intestate by reason of the alleged negligence of the defendant. The facts alleged in the complaint and admitted in the answer are as follows: Defendant is engaged in business of a common carrier between the city of Charlotte, N. C., and points to and beyond the state line in Virginia and other states. On the night of March 14, 1904, one of its freight trains, consisting of nine cars, was being backed through the city of Charlotte towards the freight depot; the leading car being loaded with lumber. Said train was backed for the purpose of coupling the lumber car to two other cars on the said track, near Eleventh street, and was under the control and management of defendant's conductor, Mr. Ramseur. Plaintiff's intestate, M. T. Wallace, was employed on said train as a switchman or brakeman; his duty being throwing switches coupling and uncoupling cars. He was under the order and direction of the said conductor, whose instructions and orders it was his duty to obey. The said conductor and plaintiff's intestate were together on the said lumber car. The said car was loaded with lumber 4 1/2 feet high piled thereon, and on each side of the said car there were standards, and from the standards on the one side to those of the other, at the end of said car, a piece of lumber was nailed to said standards across said car and over said lumber. Said cross-piece was fastened to said standards with three eightpenny nails in each end thereof. Defendant recommended to those of its pattrons, who loaded cars for lumber for shipment over its lines, compliance with the rules of the Master Car Builder's Association, which rules require that the boards nailed upon standards across the lumber be fastened at each end by not less than three tenpenny nails. As the said train was being backed, as aforesaid, in a southerly direction towards the said freight depot, the conductor told the plaintiff's intestate that there were two cars somewhere near Eleventh street; that they were to couple the said two cars on to the said train or lumber car and shift back up town; that plaintiff's intestate took hold of the said cross-piece as a support to sustain him, and, while attempting to climb down over the front end of the lumber, it pulled or was jerked loose and plaintiff's intestate fell upon the track and was killed. In addition to the foregoing facts, the plaintiff alleged that, when her intestate took hold of the said cross-piece for the purpose of making the coupling, he had a right so to do, and it was usual in such cases in order to prepare the coupling, or see that it was prepared so that it would couple to the said two cars for which said train was being backed; that in the performance of his duty, and in pursuance of the orders of the conductor, it was necessary for him to hold on to said cross-piece; that defendant was negligent in failing to have said cross-piece so securely fastened that it would not turn loose when he took hold of it for a support; that the coupling on the said cars was so defective that it was necessary for her intestate, in the discharge of his duties, to prepare said knuckle on the said car before the impact with the other car to which it was to be coupled, so that it would couple by impact. There were other allegations of negligence, but, as no testimony was introduced tending to sustain them, it is not necessary to set them out. The defendant contended that the cross-piece which plaintiff took hold of was put upon the car for the sole purpose of holding the lumber in place, and not as an appliance or way for the plaintiff's intestate to get into a position to make the coupling, or that it was customary or usual to use such cross-piece for such purpose. It is further alleged that said cross-piece was used for the temporary purpose of holding the lumber upon the car, and is cast aside and disposed of with the lumber itself. Defendant also insisted that plaintiff's intestate was guilty of contributory negligence in attempting to get into a position to couple the cars.
Plaintiff introduced one Freeland, who testified that he saw the car a short time after the accident, supposed it was loaded with weatherboarding, about 4 or 5 feet high above the floor of the car, as cars are usually loaded; that he examined it next morning; that, if lumber was loaded up to within 8 or 10 inches of the front end of the car, there would be room enough for a man to stand on the car sideways. Described the appearance of the track where the plaintiff's intestate was killed. Has had considerable experience in railroad business; knows part of the rules of defendant company with reference to brakemen and switchmen. Has worked as a coupler or switchman about two months for defendant. Was made conductor in Savannah. Witness was asked whether he was acquainted with the customary use by brakemen or switchmen on defendant road at or about the time Wallace was killed, of cross-pieces nailed across from the rear standards of a lumber car, when that is the leading car of a train being backed, in going upon or descending from the car; to which he answered "Yes." He was then asked as to the customary use of such cross-piece at the time. Defendant objected; objection overruled and exception. Witness stated that the customary way of going across lumber cars is getting upon the end of them and reaching up and getting hold of that cross-piece, and sometimes the standards are held together by wires instead of cross-pieces, in which case you get hold of them and pull right up. That is the natural way. He knows the custom of couplers getting down to the front of a moving car loaded with lumber, by catching hold of the cross-pieces for the purpose of making coupling. He knows the purpose for which cross-pieces are nailed across standards. Witness is then asked a hypothetical question involving the conditions described, to which defendant excepted. He said: The witness was asked other questions of the same character not necessary to be set out in full. Upon cross-examination he said that he had gone down over the front end of lumber cars similar to the one in question for the purpose of making a coupling and had seen other men do it. He describes how the coupling is made.
Plaintiff introduced other witnesses who were examined, under objection, in regard to the manner of making couplers, the safe way to do so, etc. Plaintiff also introduced witnesses in regard to the difference between eight and tenpenny nails. There was much evidence tending to show the different methods in which coupling should be made under such circumstances. Defendant introduced no evidence and demurred to the plaintiff's evidence; demurrer overruled, and defendant excepted. Defendant submitted a series of instructions to his honor; each of them concluding with the request to direct the jury to answer the first issue. No specific instructions were asked upon the second issue. The jury answered the first issue "Yes," and the second issue "No." His honor instructed the jury that it was the duty of the railroad company to provide reasonably safe appliances for the descent of its brakemen and switchmen when engaged in the performance of duty, and, when, because of the character of a load upon a flat car, it is impracticable to provide a permanent appliance for that purpose, and there is an appliance in common use in connection with cars so loaded and the main purpose of which is to steady and secure the load of lumber on said car, but that it is the custom of brakemen and switchmen in the performance of their duties to make use of said appliance for descending from said...
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