83 S.E. 703 | N.C. | 1914
This action is for the recovery of damages for personal injuries sustained by plaintiff falling into a railroad cut 30 feet deep across Main Street in the town of Mount Gilead. The only point presented is the refusal of the motion for nonsuit.
There was no evidence offered for the defendants. The evidence for the plaintiff was that he was a stranger in the town; that he was ignorant of the cut across the street, which was 30 feet deep and ran completely across Main Street; that there were no lights or any kind of signals to warn travelers nor any railing to prevent passers-by from falling into the cut; that it was a very dark, drizzly night; that a small footbridge had been swung across the cut by defendants for the use of pedestrians, but that this bridge on the side where the plaintiff fell in *732 was 5 or 6 feet out of line with the sidewalk, so that any one keeping on the sidewalk would inevitably walk into the cut, just as the (670) plaintiff did; that the cut was on the right of way of defendant railroad; that it had been excavated by the other defendants, Kenefick, Hoffman Co.; that plaintiff while walking on said sidewalk, under these circumstances, stepped off into said cut, falling 30 feet on a pile of stone, thereby breaking his jaws, fracturing his nose and skull, and totally incapacitating him for work, and that his mind has been seriously impaired as a result of his injuries.
The evidence was that the cut was on the right of way of the defendant company and that the other defendants did the excavating and bridge work under contract with the railroad company. Defendants set up the defense of independent contractors in their answers, but there was no evidence to support the plea. This work was done by contract, but under the direction of the railroad company. Besides, the defense of an independent contractor is not available where the thing contracted to be done is "necessarily attended with danger or will probably become a nuisance." Watson v. R. R.,
Digging the railroad cut across the street in question was "necessarily attended with danger, however skillfully and carefully performed." Carrickv. Power Co.,
The jury found that the plaintiff was injured by the negligence of the railroad company, and also of Kenefick, Hoffman Co., as alleged in the complaint, and that the plaintiff did not contribute by his own negligence to his injuries.
There was evidence to justify the submission of the case to the jury on these issues, and we find
No error. *733
Cited: Strickland v. Lumber Co.,
(671)