145 N.C. 214 | N.C. | 1907
Upon tbe trial tbe plaintiff tendered tbe issues submitted, and also another issue, as follows: “If tbe plaintiff contributed to his own injury, could tbe defendant have avoided tbe injury by due care V’ Tbe refusal of tbe Court to submit this issue is strongly pressed by plaintiff as error. Tbe contention of a plaintiff that, although be may be guilty of negligence, yet tbe defendant bad tbe last opportunity to prevent injury, can be presented under tbe issue of contributory negligence, as negligence, to bar recovery, must be shown to be tbe proximate cause. Baker v. Railroad, 118 N. C.,
1. Tbe only exception to the evidence and most of the prayers for instruction relate to tbe first issue; and as tbe jury answered that issue in favor of tbe plaintiff, it is unnecessary to consider them.
2. Tbe contention of plaintiffs, as presented in prayers for instruction upon tbe second issue, that “kicking” cars is negligence per se, and the proximate cause of the plaintiff’s injury, seems to be founded upon a misapprehension of tbe decisions. Tbe 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 tbe employees performing them. It is “tbe attempt to make a running switch” when tbe detached car has no brakeman on it and is under no control that is declared to be negligence, because highly dangerous. Wilson v. Railroad, 142 N. C., 336, and cases there cited.
3. The plaintiff further requested tbe Court to charge that there is no evidence of contributory negligence. We tbink bis Honor properly denied bis prayer. There is ample evidence in tbe record to go ~to tbe jury upon that issue. In fact, bis Honor might well have instructed tbe jury that tbe plaintiff, upon bis own showing, was guilty of contributory negligence, and by bis careless conduct caused bis injury. Plaintiff was ordered to assist the switchman, Elias Outlaw, in sidetracking tbe “shanties.” Being a brakeman, he knew bis place was on top of tbe shanties and at tbe brakes, so be could control tbe cars as they were “shunted” or “kicked” from tbe track onto tbe switch. He jumped from the ground to tbe moving coal car, next to tbe shanty, for tbe purpose of ascend
The majority of the Court is of opinion that there is
No Error.