156 N.C. 519 | N.C. | 1911
There was evidence tending to show that, in September, 1910, the intestate, an employee, was run over and killed by a train of defendant company; that, at the time of the occurrence, the intestate, a youth between eighteen and nineteen years of age, was acting as fireman, he and the engineer composing the train crew, the duties of intestate being to fire the engine, couple and uncouple the cars, and change the switches; that the train in question consisted of an engine and twelve or thirteen logging trucks or cars, two of them, several cars back from'the end, being loaded with a barrel of oil and feedstuff, and was backing at the time with the purpose of cutting out these loaded cars and leaving the empties on a siding near at hand; that with this end in view, and while the train was in motion, approaching the switch, the intestate left the engine and went along the skeleton cars of the train and to the forward end of the loaded cars and took a position to uncouple the empty cars, in front. About the same time, one Lonnie Emerson, a young man who was also on the engine, but without regular duties, so far as the testimony shows, was requested by the engineer to go forward and assist the intestate by uncoupling
Q. You have heard the kind of switching that was being done on this road. "Will you state from your knowledge as an engineer and from your experience how that work should be done and the proper way to do it ?
The Court: He can state what is a safe way and an unsafe way. A. The safe way would be to back your train to the switch and stop and cut off your cars.
Q. Can it be done any other way? A. Yes, there are Other ways that it is frequently done. Our rule book says you can’t make a switch that way.
Q. From your knowledge of this kind of work as an engineer, other than by the usually accepted rales of trainmen doing this kind of work in this part of the country, is it considered a safe and proper way to uncouple cars when moving down grade without stopping?
Q. Have you had experience in running log trains? A. Yes, T have handled quite a bit. I will answer that it is not safe to make a flying switch anywhere.
Q. What kind of switching is that which has been 'described ? A. That is a flying switch when you have a car to shift without stopping the .train, or the train is in action all the time.
On the conduct of the intestate, while we have held that our statute, known as the Fellow-servant Law, Eevisal, see. 2646, applies to these logging roads, we do not think that the terms of the law, giving a right of action to an employee injured by reason of defective “machinery, ways, or appliances,” refer to conditions as how disclosed in the testimony; the term- “ways,” we think, having reference rather to roadways and objective conditions relevant to the inquiry and which it is the duty of the employer to provide. The negligence, if any, imputable to defendant on the testimony, is by reason of negligent directions given and methods established, by the employer, subjective in their nature and to which the statute on the facts presented was not intended to apply. It is well understood, however, that an employer of labor may be held responsible for directions given or methods established, of the kind indicated, by reason of which an employee is injured, as in Noble v. Lumber Co., 151 N. C., 76; Shaw v. Manufacturing Co., 146 N. C., 235; Jones v. Warehouse Co., 138 N. C., 546, and, where such negligence is established, it is further held, in this jurisdiction, that the doctrine of assumption of risk, in its technical acceptation, is no longer
Error.