58 S.E. 1081 | N.C. | 1907
The court submitted the following issues:
1. Was the plaintiff, William Allen, injured by the negligence of the defendant?
2. Did the plaintiff, William Allen, contribute to his injury by his own negligence?
3. What amount, if any, has plaintiff been damaged?
The jury answered the first issue "Yes," and the second issue "Yes."
From the judgment that the defendant go without day, the plaintiff appealed.
Upon the trial the plaintiff tendered the issues submitted, and also another issue, as follows: "If the plaintiff contributed to his own injury, could the defendant have avoided the injury by due care?" The refusal of the court to submit this issue is strongly pressed by plaintiff as error. The contention of a plaintiff that, although he may be guilty of negligence, yet the defendant had the last opportunity to prevent *156
injury, can be presented under the issue of contributory negligence, as negligence, to bar recovery, must be shown to be the proximate cause. Baker v. R. R.,
1. The only exception to the evidence and most of the prayers for instruction relate to the first issue; and as the jury answered that issue in favor of the plaintiff, it is unnecessary to consider them.
2. The contention of plaintiff, as presented in prayers for instruction upon the second issue, that "kicking" cars is negligence per se, and the proximate cause of the plaintiff's injury, seems to be founded upon *157
a misapprehension of the decisions. The word "kicking" seems to be used, in railroad parlance, as synonymous with making a "flying switch." This Court has never held such operations to be per se negligence in respect of the employees performing them. It is "the attempt to make a running switch" when the detached car has no brakeman on it and is under no control that is declared to be negligence, because highly dangerous. Wilson v. R. R.,
3. The plaintiff further requested the court to charge that there is no evidence of contributory negligence. We think his Honor properly denied his prayer. There is ample evidence in the record to go to the jury upon that issue. In fact, his Honor might well have instructed the jury that the plaintiff, upon his own showing, was guilty of contributory negligence, and by his careless conduct caused his injury. Plaintiff was ordered to assist the switchman, Elias Outlaw, in sidetracking the "shanties." Being a brakeman, he knew his place was on top of the shanties and at the brakes, so he could control the cars as they were "shunted" or "kicked" from the track onto the switch. He jumped from the ground to the moving coal car, next to the shanty, for the purpose of ascending the ladder. When he mounted the coal car he saw the switchman at the crank and knew he was in (218) the act of "cutting loose" the shanties, as ordered. The plaintiff never called to Outlaw, but took his chances and endeavored to leap onto the shanty car just as the switchman "cut it loose." The plaintiff probably believed that he could successfully make the leap, or doubtless he would not have attempted it. He made a mistake, as other unfortunate men have done before, and fell to the ground between the moving cars and was injured.
The majority of the Court is of opinion that there is
No error.
Cited: Boney v. R. R., post, 250; Johnson v. R. R.,