Wilkie v. Raleigh & C.F.R. Co.
| Decision Date | 20 November 1900 |
| Citation | 37 S.E. 204,127 N.C. 203 |
| Parties | WILKIE v. RALEIGH & C. F. R. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Chatham county; Moore, Judge.
Action by C. D. Wilkie against the Raleigh & Cape Fear Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Where instructions consisting of several clauses contain at the beginning the words, "If the jury find from the evidence," it is not necessary to repeat such words in each clause.
Douglass & Simms, for appellant.
Womack & Hayes, for appellee.
This is an action for damages received by the alleged negligence of defendant company. The plaintiff was an employé of the defendant at the time of the injury complained of, and, while he did not occupy the position of a "section master," his business was to do the work of a section master. He and a man by the name of Moring each had a squad of hands that worked under them, doing such work. But neither he nor Moring had any separate part or section of the defendant's road assigned to them, but they worked on any part of the road, under the directions of Mr. Mills, the president and superintendent of the road; that the plaintiff had been sick and absent from the road, at his home in Chatham county, for two weeks just before he received this injury; that on his return to his work Mr. Mills furnished him with a bill or memorandum of 11 points on the road that needed repairs. The ninth of these was in the following language: "(9) Low joint south of second trestle below Willow Springs;" and it is contended by the defendant that this is the point at which the injury occurred. But this was disputed by the plaintiff, and both sides introduced evidence as to this being the point where the injury was received. The plaintiff and crew that worked under him were traveling over the road on a hand car at the time of the injury, the plaintiff standing upon the car when it became derailed, and, from the sudden jar, the plaintiff was thrown off and injured. The theory of the plaintiff is that there was what is called a "dodged joint" in the road at this point; that defendant's duty was to keep its roadbed in good repair; that it was its duty to know if it was not in good condition, and that in fact it did know that its road was not in good condition, and that it negligently allowed it to remain in bad condition, and that this negligence was the cause of the plaintiff's injury. The defendant contended that the plaintiff's own negligence was the cause of his injury; that he was running this car at too great speed at the time of the injury, by reason of which the car was derailed; that the car was worked by means of a lever, and was jerked off the track by the violent manner in which the lever was worked; that the plaintiff had been cautioned by the defendant against running his car so fast over the road but continued to do so, in violation of the orders of defendant; that, had the plaintiff been running his car at a proper rate of speed, the accident would not have occurred that in this way the plaintiff by his own negligence was the author of his injury, and was not injured by the negligence of the defendant. The defendant also contended that the plaintiff was employed by defendant to do this work, and that he assumed the risk of danger and damage connected therewith and that he cannot recover on that account.
A great many points were raised and discussed during the trial below and here. But the principal questions, as it seems to us, are those we have stated, and will be first discussed. Both sides offered a great amount of testimony to sustain their contention, but it is not necessary that we should repeat or discuss the same at this time, as it seems to us it was fairly submitted to the jury. There is one exception to evidence which it will be necessary for us to notice before we conclude this opinion.
The defendant makes a great number of exceptions to the charge all of which have been examined, but only a few of them will be discussed, as they cannot be sustained, and their discussion would be of no benefit. The plaintiff's right to recover depends upon the application of the principles of law to the contention of the parties as to the negligence of plaintiff and the negligence of defendant,-as to whether the injury was caused by the negligent speed and manner in which the plaintiff operated his car, or whether it was caused by the negligence of defendant in not making and keeping its road and roadbed in good and safe condition. It was the duty of the defendant to construct and maintain a safe roadbed, and a failure to do so is negligence per se. Marcom v. Railroad Co., 126 N.C. 200, 35 S.E. 423. It is admitted by the defendant that its roadbed was not in a good and safe condition at the point where this injury occurred, and that the defendant knew it was not. From this admitted negligence of the defendant, it will be presumed that defendant's negligence was the cause of plaintiff's injury. Marcom v. Railroad Co., supra. And the burden is then cast upon the defendant to show that it was not its negligence, but that it was the negligence of the plaintiff, or that it was the concurrent negligence of the plaintiff, that caused the injury, or, as in Marcom's Case, supra, it was caused by acts or influences over which the defendant had no control. The defendant in this case undertook to do this by showing that plaintiff was its employé, and in charge of the work of examining the roadbed and repairing the same; and, although it might have been the defect in the roadbed,-the "dodged joint" that caused...
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