56 S.E. 910 | N.C. | 1907
The plaintiff sues the defendant company, in the hands of a receiver, for damages for injuries alleged to have been sustained while in its employment, by reason of defective ways furnished in discharge of his duty, and negligence of its employees. The defendant was at the time of the injury a corporation operating a railroad between Lumberton, N.C. and Marison, S.C. Prior to the time of the injury defendant's property had, by order of the Circuit Court of the United States, been placed in the hands of W. J. Edwards, receiver, who was, pursuant to said order, operating said railroad. Plaintiff alleged that, at the time of said injuries, he was in the employment of said corporation under the control and direction of said receiver; that among other duties assigned to him he was required to aid in loading the cars of said railroad; that on the day of said injury one of the flat cars of said corporation, attached to an engine and other cars, was upon the track of defendant for the purpose of being loaded with logs, the property of the Southern Sawmill (244) Company, for transportation. That the usual and proper manner of loading the car was to place skids, one end resting on the side of such car and the other end on the ground or embankment on the side of the track. That the logs lying on the ground or placed on the embankment were drawn over the skids up to and on the car by means of iron chains, one end of which was put around the log and the other end carried over the car and to the opposite side, when mules, hitched to the chains, pulled the log up on the car. The complaint described the manner in which the logs were usually, and by a safe method, drawn up on the car, the adjustment of the chains, etc., and alleged that the manner in which the chains were adjusted by defendant at the time he sustained the injury was unusual, unsafe, and dangerous. That prior to the day of the injury he had frequently notified defendant's superintendent that the manner in which chains were adjusted and the logs drawn up on the car was unsafe and dangerous, and that said superintendent had promised to furnish proper chains for said purpose. That on the day of the injury plaintiff was in the discharge of his duty, aiding in loading the car, when, by reason of the defective and dangerous method of adjusting the chains, and the sudden and unannounced movement of the mules, under the direction of the driver, the log fell from the skid and injured plaintiff. That the driver of the mules was an employee of defendant, being one of a loading crew furnished for that purpose. Plaintiff further alleged that "the immediate and proximate cause of his injury was the failure of the defendant to provide a safe appliance and double chains with which to do said work, although demanded of defendant, and its failure in the conduct of the work to observe ordinary care and prudence in starting the train of mules, without notice or warning, to pulling at the leg, which fell upon plaintiff," etc. *171 Plaintiff set forth for a second cause of action substantially the (245) same allegations, except that he averred that the driver of the mules and himself were in the joint employment of the sawmill and the defendant, and that if the defendant had furnished a double chain with which to have done the work he would not have been injured, notwithstanding the sudden driving of the mules, etc.
The defendant denied all of the material allegations of the several causes of action set forth in the complaint. Appropriate issues were submitted to the jury. At the conclusion of the testimony his Honor, upon defendant's motion, directed judgment of nonsuit. Plaintiff excepted and appealed. The plaintiff's appeal calls into question his Honor's opinion that there was no evidence fit to be submitted to the jury upon which a finding could be predicated in his favor. The first proposition which plaintiff must make good is that at the time of the injury he was in the employment of the defendant. If he has failed in producing evidence proper to go to the jury tending to sustain this position, he must fail in his action. In this regard the testimony, which for this turn we must take to be true, is that both the defendant railroad company and the Southern Sawmill Lumber Company, a corporation engaged in cutting, sawing, and shipping logs, were in the hands of W. J. Edwards, as receiver; that the lumber company shipped its logs over the defendant road, loading them on cars in substantially the manner described. That one McNeely was in the employment of the receiver or superintendent of defendant railroad company. Plaintiff testified; "In February, 1904, I was working on a log train of the defendant (246) company; was conductor of a log train; had been about three months. I was assigned or put in charge of this train as conductor by Mr. McNeely, who was at that time the general superintendent of the defendant company. Mr. McNeely told me to take the log train and run it to the best advantage of the railroad and the mill; to see that logs were loaded and unloaded; to collect passenger fares and to see that no one rode on the train except the train crew, unless they paid fare. Directions were given by Mr. McNeely as to the movement and operation of the train, etc. He also gave me time-tables of schedules, and told me to be careful to avoid collision with other trains, etc. . . . The local conductor and engineer were under my control. The movement of trains was directed by me. . . . Mr. Edwards told me that he expected me to help load the logs on the cars, and that, however well he liked me, if *172 I did not do this, he would get some one in my place who would do this work. This conversation or instruction from Mr. Edwards occurred while I was operating the train and put in charge of it as conductor." The plaintiff, upon cross-examination, said "I went to Kingsdale in May, 1899, accepted employment with the Southern Sawmills. Mr. King was in charge. Remained there, under several superintendents, until Mr. Edwards took charge as receiver in Spring of 1903. Did practically the same work under all the superintendents. After Mr. Edwards took charge, until November, 1903, my work was regularly in the woods examining timber. Can't tell who paid me for my services. Went to the office and got my pay, but do not know who paid it — who furnished it. Think my name was on the pay-roll of the mills to the time of injury. Won't swear that my name was ever on the pay-roll of (247) defendant company. The wages were paid me at the office of the mill; this was after Edwards was appointed receiver. Was hurt in the afternoon, after dinner. The logging force had been there from early morning. Did not go down with train in the morning — don't know what conductor did." There was much other testimony from plaintiff upon the question of employment, some of which tended to sustain and some to contradict his contention. It is manifest that some confusion in regard to his relation to the two corporations grows out of the fact that Mr. Edwards was receiver of both and operating both. It does not appear what, if any, relation they bore to each other. The plaintiff says that Mr. Edwards told him that the reason why he wished him to serve the defendant company in the manner testified to was "to save expense."
While the payment of or promise to pay wages, in consideration of services rendered, establishes the relation of employer and employee, other considerations may be sufficient, as, if A. Employs B. to serve himself and another, the fact that A. pays the entire wages will not necessarily prevent the other from being, in respect to the services rendered, the employer or master of B. The theory of the plaintiff is that Edwards, being the receiver of both corporations, employed or retained him in the services of the lumber mill, with the agreement between Edwards and himself that in addition to his services to the mill he should, when so directed by the receiver, serve the defendant company. That pursuant to this agreement he rendered the service as described by him, and was under contract obligation to help load the car. Mr. Edwards, as receiver of both corporations, had the power to make such a contract, and it was prudent for him to do so "to save expense." The adjustment of the wages between the two corporations, for which he was receiver, may well have been left to him. It did not concern plaintiff if he was willing to render the service to both corporations, as he (248) says he did. In Rouke v. White Moss Coll. Co., L. R., 2 C. P. *173
Div. (1877), 205 Cockburn, C. J., Says: "Where one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him." The principle is well stated by Miller, C. J., in Vary v. R. R.,
In reply to a question of the court, after explaining the situation of the log, the plaintiff said: "That the driver starting unexpectedly was the cause of the accident." Defendant insists that, upon this testimony, the proximate cause of the injury was the action of the driver in starting the mules without warning, thereby throwing the log upon plaintiff. Conceding that plaintiff was in defendant's employment, and that the chains furnished him for loading were not such as were in general use, and that, at the moment preceding the injury the log, by reason of the defect in the chain, was not straight on the skids, and that plaintiff, in the discharge of his duty, was in the act of straightening it so that it would have gone on the car in safety, it insists that an independent cause intervened and produced the result — that is, moved the log, throwing it from the skids and causing it to fall upon the plaintiff. This contention presents an interesting question in the solution of which other phases of the testimony must be noted. The plaintiff, to meet this contention, says that the driver was also in the employment of the defendant company, and that, being a fellow-servant, the defendant is responsible for his negligence. We do not discover any evidence tending to show that the driver was in the service of defendant, otherwise than as the employee of the mill.
The case, then, comes to this: The defendant, owing to the public the duty of receiving and transporting freight, places a car upon its track at a place and in a position to receive logs from the lumber (252) mills for shipment; the defendant furnishes the chains and directs the plaintiff, its employee, to aid in loading the car; the lumber mills furnish the mules and driver to perform the duty assigned to them in the work. The duty is imposed upon the defendant to receive the logs for shipment, and this, we think, includes the duty of loading them upon the car. So far as it affected its employees, it was its duty to provide reasonably safe ways and appliances, and to adopt safe methods for doing the work. If, instead of loading the cars, the defendant permitted the shipper to do so, it assumed a responsibility to its employees that the shipper would likewise use safe ways, etc.
We had occasion to consider this question in Wallace v. R. R.,
The conclusion to which all of the authorities, supported by reason, brings us is this: The defendant owned to the lumber mills the duty of receiving at such convenient place as it might designate, the logs, (254) and loading them upon its cars for shipment. It owned to the plaintiff, when directed in the course of his employment to aid in the loading, the duty to furnish safe ways, appliances, and careful coemployees. If this duty to load the cars was delegated to another, and the plaintiff directed to aid in the work, the defendant remained liable for the negligence of such other person in the same manner as if it had sent its own servants to do the work. So far as the duty of the defendant to the plaintiff is concerned, in respect to furnish safe ways, appliances, and coemployees to aid in the work, the lumber mills and *177
its employees were the servants of the defendant. Allison v. R. R.,
We do not deem it very material to inquire whether the lumber mill was, in loading the car, and independent contractor or was the employee of the defendant or acting simply by its permission. The result of its negligence, so far as the plaintiff is concerned, is the same. In no aspect of the case can the defendant escape liability upon the doctrine of the nonliability of the negligence of a fellow-servant. Revisal, sec. 2646.
We are thus brought to an examination of the contention of the defendant that the proximate cause of the plaintiff's injury was not the defective ways (chain), but the negligence of the driver in starting the mules. The principle invoked by defendant is recognized and uniformly enforced. It is well stated in Harton v. Telephone Co.,
As the motion for judgment of nonsuit was based upon the plaintiff's evidence, the judgment, granting the motion, does not indicate upon what aspect of the testimony his Honor was of the opinion that plaintiff was not entitled to maintain his action. This condition of the record, together with the range of the arguments, makes it necessary to consider the testimony in all of the aspects of the case.
We have, as the motion to nonsuit necessitates, treated the testimony as true, and given the plaintiff the benefit of that view of its most favorable to his contention. It is proper to say that there is to be found in his testimony grounds for other inferences favorable to defendant's contention; these were not open to us in reviewing the judgment of nonsuit. We are of the opinion that, for the reasons stated, the testimony as it bore upon the several issues raised by the pleadings should have been submitted to the jury under proper instructions by the court. To that end there must be a
New trial.
Cited: S. c.,
(257)