52 S.E. 416 | N.C. | 1905
Plaintiff brought this action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. He was a switchman in defendant's employ and belonged to the crew in charge of the "switch local" between Gastonia and Gaffney, which places were about 30 miles apart. Plaintiff complains that defendant used a road or line engine when it should have had a switch engine for that kind of work, and that the road engine was in itself unfit for such service, and lastly that it was out of order, in that it had a defective flange on the lower rim of the pilot which was used by switchmen as a step to get on and off the engine when in motion and while they were engaged in switching; that plaintiff, *100 (132) while in the performance of his duties, stepped upon this flange, as it was his custom to do, and it gave way, causing him to be knocked down by the pilot and dragged some distance, when the wheel of the engine ran over his leg and crushed it. Plaintiff further alleged that he rode on the pilot with the knowledge and consent of defendant's employees, under whose orders, as his superiors, he worked.
Defendant denies these allegations and avers that plaintiff was not entitled to have a switch engine for such work as he was doing, and that it was not required in such service and could not safely be used, as the train moved from place to place along a considerable stretch of the main track of its railway, and the switching was therefore not done in a regular switch yard where such engines are commonly used; that a road engine was proper and sufficient for the purpose, and that the engine in question was in good condition and supplied with a step and a staff behind the pilot, as good as a foot board and hand hold, where plaintiff could get on and off the engine and where he could stand and hold on with perfect safety. Defendant specially denies that the flange was not in good condition and avers that it was safe and sound and that plaintiff's injuries were caused by his own negligence. Plaintiff denied that there was any step behind the pilot.
Testimony was introduced by each of the parties to sustain their respective contentions. At the close of the testimony, the court intimated that it would charge the jury that there was not sufficient evidence as to the negligence of defendant in failing to use a switch engine, and that it would submit only the evidence as to defendant's negligence in respect to the condition of the flange, the contributory negligence of plaintiff and the proximate cause of the injury as between these two alleged acts of negligence. In deference to this intimation, plaintiff (133) submitted to a nonsuit and appealed. after stating the case: We will not discuss the question raised in the argument before us, whether it was the duty of defendant to have had a switch engine instead of a road engine for the use of the crew on its train, as it is not necessary to a decision of the case.
Plaintiff alleges that his injuries were caused by the negligence of defendant and specified different acts or omissions as constituting the negligence. Each act or omission, so alleged, *101
was not pleaded nor intended to be treated as the basis of a separate and distinct cause of action, but as singly, or in connection with the others, tending to establish the one cause of action for the negligence which resulted in his injury. When the court intimated that it would withdraw a portion of plaintiff's evidence from the jury, it acted prematurely, for the case was not being submitted to the jury at the time and the ruling did not extend to the entire cause of action, as would be the case with a judgment sustaining a motion to nonsuit or to dismiss. The ruling at that time was calculated to embarrass and to handicap plaintiff in the development of his case and necessarily to prejudice him. But we will not further discuss this matter, nor will we even refer to the legal merits of the case, so far as presented by the pleadings and evidence, when it was abruptly brought to a close by the intimation of the court. Nor is it necessary to decide, as will hereafter appear, whether plaintiff proceeded properly when he elected to be nonsuited, and appealed. It is common practice for a plaintiff to submit to an involuntary nonsuit, which he is driven or compelled to take, reserving leave to move afterwards to set the same aside, with a view not to abandon the prosecution of the suit, but to further prosecute it by appeal, in order to test the correctness of a ruling of the court which may (134) otherwise be fatal in his case; and the practice is a useful one when restricted within its proper limits. Mobley v.Watts,
Pursuing the course taken in that case, we remand the cause with directions to set aside the nonsuit and thereafter to (135) proceed in the same according to the law and the course and practice of the court.
New trial.
Cited: Midgett v. Mfg. Co.,