Wallace v. Western N.C.R. Co.

• Decision Date: 23 December 1887
• Citation: 4 S.E. 503,98 N.C. 494
• Parties: WALLACE v. WESTERN N.C. R. CO.
• Court: North Carolina Supreme Court

4 S.E. 503

98 N.C. 494

WALLACE v. WESTERN N.C. R. CO.

Supreme Court of North Carolina

December 23, 1887

Appeal from superior court, McDowell county; JAMES C. McRAE, Judge.

This action was brought by W. J. Wallace against the Western North Carolina Railroad Company to recover compensation for injuries sustained by the plaintiff while traveling on a freight train on the defendant's road. In the court below, the judgment was in the plaintiff's favor. The defendant appealed.

Plaintiff a passenger on a freight train, while standing up in the caboose, was thrown down, owing to a sudden movement of the train. It appeared that plaintiff knew of the jerks incident to freight trains; that there was a seat at his disposal that there had been frequent jerks during the journey, such as are usual in freight trains, and other passengers had kept their seats in consequence. Held, that plaintiff was negligent.

P. J Sinclair and W. H. Malone, for plaintiff.

D Schenck and C. M. Busbee, (Erwin & Price, of counsel,) for defendant.

DAVIS J.

Civil action tried before McRAE, J., at spring term, 1887, of McDowell superior court. In November, 1885, the plaintiff was a passenger on a freight train of the defendant company, going from the town of Old Fort to the town of Marion; and he alleges, substantially, that, for want of due care and attention, the locomotive to which the train was attached was overloaded, causing it to "stall," and by the careless, unskilfull, and negligent management of the servants and agents of the defendant company, it was driven with such terrible force against the cars of the defendant as to cause the car in which the plaintiff was to be jerked and jarred with such force as to violently throw him down within said car, whereby he was greatly cut, bruised, and wounded, and had his leg badly fractured and broken, etc., and for his said injuries he claims $8,000 damages. The defendant company answers, denying the material allegations of the complaint, and for a further defense says plaintiff by his own negligent conduct contributed to his injury; that he was a passenger on a second-class car on a freight train, and knew it was not as safe and comfortable, or as easily managed and controlled, as a passenger train, and consented to the ordinary risk incident thereto, such as sudden jerks and starts or stops, etc.; that he knew the inconveniences of the seats and their condition, and assumed such risks as necessarily grow out of such appurtenances, and was bound to exercise more than ordinary care for his own safety, and that he failed to care for himself as he ought, under the circumstances. There was evidence on behalf of the plaintiff, who was a passenger on a freight train of the defendant company from Old Fort to Marion on the seventh of November, 1885, tending to show that the train was behind time and overloaded; that at an up grade it stalled and stopped; that attached to the train was a caboose for passengers, with seats running along the sides, --one bench on each side; that a passenger in the caboose, named Clinard, with his arm in a sling, had a coat and bottle of liniment, which, upon a sudden jerk of the car, had fallen to the floor, and the plaintiff had picked it up, and was standing; that the train had jerked a number of times, and by a sudden and severe jerk--"crash," one of the witnesses termed it--the plaintiff was thrown to the floor, and had a bone of the thigh broken. It was also in evidence that the plaintiff knew that it was a freight train, had lived on the line of the road, had seen long freight trains, and "the engines starting them;" that there was plenty of room to sit down, and the plaintiff was near a seat, and that the other passengers were seated. One of them, W. H. Murphy, a witness for plaintiff, testified that "the train had stalled and jerked several times. He kept his seat. Was afraid of their running back to get a start, and knew they were pretty rough about starting." There was also evidence as to the nature and extent of plaintiff's injury, and of want of proper care and attention on the part of the conductor. There was evidence on behalf of the defendant tending to show that the conductor and engineer were careful and skillful; that the engine was in perfect order; "that there were no defective cars, and that the hands were competent, prudent, and reliable. The track was in good order, but wet, and that the stall...