37 S.E. 77 | N.C. | 1900
DOUGLAS AND CLARK, JJ., dissent. This action was brought by the administrator to recover damages for the death of his intestate, alleged to have taken place through the negligence of the defendant. The alleged negligence was that the defendant failed to provide for the deceased an appliance to be used over the hold of the boat for the use and convenience of the employees in passing from one side to the other, in the nature of a gang-plank, that was safe and suitable; the one in use having been alleged to have been made of unsound material, and not fastened and secured at its ends in jambs, so as to prevent its slipping and giving way. After the plaintiff had produced his evidence and rested his case, the defendant moved for judgment as of nonsuit, under chap. 109 of the Acts of 1897; and, upon the motion having *23 been allowed, the plaintiff excepted and appealed. It therefore becomes necessary for us to consider and to decide whether the plaintiff's evidence, in a just and reasonable view of it, was sufficient to warrant the jury in finding the issue as to the defendant's negligence in the plaintiff's favor. If there was more than a scintilla offered on that issue by the plaintiff, the matter ought to have been submitted to the jury, (33) and there was error in the ruling of the Court below. If there was no fit evidence offered by the plaintiff to be submitted to the jury, then his Honor was correct in allowing the motion.
The defendant railroad company owned and operated a steamboat as a transfer boat between Edenton, N.C. and Mackey's Ferry; and the plaintiff's intestate was engaged in the service of the defendant, as fireman on the boat, at the time he received the injury which resulted in his death. Four witnesses were introduced and examined by the plaintiff, — Eliza Jones, widow of the intestate; Henry Whedbee, who was aboard the steamer the day of the accident, and who saw the intestate just before and just after he was hurt; the plaintiff, and Dr. Alexander, who saw the intestate after he was hurt. The evidence of the widow and the two last-named witnesses is immaterial on the question of the defendant's negligence. Whedbee testified on his examination-in-chief, in substance, that he saw the intestate, five or ten minutes before he got hurt, standing on a plank which reached across the boat in the engine-room, and that he was reaching up after something; that the intestate was in the engine-room, where he belonged; that in a few minutes he heard that the intestate had fallen, and immediately went to where he was; that the injured man said to the witness that the plank the witness saw the intestate standing upon slipped, and he fell; that the plank was not fastened. On his cross-examination the witness said that he used to cross on this boat about twice a week. Each end of the plank was in the middle of a door on each side of the boat and he had seen the plank at a different place, near the boiler. The plank was in the door, over the steps. The place he usually saw it was near the boiler. "It generally stayed in jambs, and when it stayed in the jambs it could not slip. It seems that he had put the plank out to reach up for something. (34) This day the plank was not in the jambs at all. Usually it stayed in the jambs, and a portion of it in the door. When it was in its usual place there was nothing to keep it from being pulled out in the door, in the position it was in that morning. When the plank was in the usual place, it could not *24 slip endwise, and it would not hardly slip sideways unless some one pulled it out. It was a loose plank." We are of the opinion that the evidence was not sufficient in a just and reasonable view of it, to warrant the jury in finding the issue of negligence in favor of the plaintiff. The plank was sound, and it, or another like it, had been used for some time for the purposes alleged in the complaint; and the plaintiff's intestate had been employed a long time, as his widow testified. There was no allegation in the complaint that such a plank, if it had been sound and well secured at the ends, would not have been a proper and safe appliance for the purposes for which it was used. Jambs were prepared to receive the plank, and it generally stayed in jambs, and when it stayed in the jambs it could not slip. It seems from the evidence, therefore, that the defendant furnished the proper appliances to enable the employees of the boat to pass safely over the hold, but that the plaintiff's intestate misused them. The witness, Whedbee, said, "It seemed he (intestate) put the plank out to reach up for something." If any other person, however, than the intestate, had moved the plank from the jambs, the intestate would have used it in its misplaced position at his peril, under the facts in this case. The doctrine of the assumption of risk does not arise in this case; for, so far as the evidence discloses, the defendant furnished proper appliances for the plaintiff's intestate to do his work with safety. The trouble was that he did not use them as he should have done.
(35) No error.
