Williams v. Southern Ry. Co

• Citation: 119 N.C. 746,26 S.E. 32
• Parties: WILLIAMS. v. SOUTHERN RY. CO.
• Decision Date: 01 December 1896
• Court: United States State Supreme Court of North Carolina

26 S.E. 32

119 N.C. 746

WILLIAMS.

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

Dec. 1, 1896.

Master and Servant—Negligence—Instruction.

In an action by a servant against his master for injuries received from the fall of a timber which was being raised by a rope, which slipped off, an instruction that it was negligence if the rope was so fastened that it was "liable" to slip off is erroneous.

Appeal from superior court, Surry county; Norwood, Judge.

Action by Iredell Williams against the Southern Railway Company. There was a judgment for plaintiff, and defendant appeals. Error.

Glenn & Manly, for appellant.

Virgil E. Holcomb, for appellee.

AVERY, J. It was conceded by both parties that the foremen or superintendents of the work were both representatives of the company, and not fellow servants of the plaintiff's injured son. That admission puts the first question that would have arisen in the natural order of inquiry in this case behind us. If such was the relation subsisting at the time of sustaining the injury, an act of the boy, which ordinarily would have been deemed negligent because it exposed him to apparent danger, would not, if done suddenly, under the command of his superior, have made him culpable, because the law assumes that his conduct was influenced by a well-founded fear of losing employment if he disobeyed the order. Turner v. Lumber Co. (at this term) 26 S. E. 23; Mason v. Railroad Co., 111 N. C. 482, 16 S. E. 698; Id., 114 N. C. 718, 19 S. E. 362; Logan v. Railroad Co., 116 N. C. 940, 21 S. E. 959. The court told the jury, however, that "it was negligence to raise a log with a rope, if the rope was so fastened that it was liable to slip off, and injure John Williams, or any one else employed under Reister, and working them that day." The word "liable" must be interpreted in this connection, in its application to the manner of tying the rope, in the sense of "exposed to the casualty or contingency more or less probable" of slipping off the log. Webst. Dict. The jury were warranted in drawing the inference that, if the rope was so tied that by any accident due to any cause, however unexpected, it might slip off, the defendant was guilty of negligence and answerable for the injury. Persons, natural or artificial, are wanting in ordinary care if they fail to take precaution to prevent others from being subjected to danger when, by reasonable diligence, and without omitting to discharge a higher duty, they can avert such peril. But the law requires of all the exercise only of such a degree of diligence in the management of their own affairs, whether as to what is done or...