44 S.E. 663 | N.C. | 1903
The plaintiff, being in the employment of the lessee of the defendant, was on the date of the injury complained of sent to paint switch targets, and at the time of the injury was painting a target the center of which was 4 feet from the center of the west rail of the defendant's track. The flange of the switch target extended from the center of the target towards the rail 6 inches. The engine extended over the track and towards the switch target as follows: Tender frame 23 1/2 inches, punch pole 24 inches, the step between the engine and tender 29 (820) inches, and the cylinder 26 inches. While engaged in painting the target, the plaintiff set his bucket, containing paint, down near the rail. A shifting engine and tender were passing back and forth over the tracks, and just before this engine reached the point where the plaintiff was at work he reached over to put his brush in the bucket and was instantly stricken by the shifting engine, which was backing up towards him.
The plaintiff put in evidence certain rules of the defendant company,Rule W being, "Whenever any person, animal, or other obstruction appears upon the track, or so close thereto as to be in danger, then instantly the following precautions must be observed: First, the alarm whistle must be sounded; second, the brakes must be applied; third, every other possible means must be employed to stop the train and prevent the accident. If there is time, all of these requirements must be complied with. If by reason of the speed of the train, or the suddenness of the obstruction, only a part of these precautions can be observed, then such of them as under the particular facts of each case are best calculated to prevent a possible accident must be observed." "Rule 66. The unnecessary use of the whistle is prohibited. When necessary in shifting at stations and in yards, the engine bell shall be rung, and the whistle used only when required by rule or law or when necessary to prevent accident." "Rule 121. In all cases of doubt or uncertainty, take the safe course and run no risks." *577
The plaintiff testified that he was familiar with these rules, and that the switch engine was moving backward and forward in the yard on the defendant's tracks; that he went to work and put his bucket right down beside the switch and started to paint the target; had been engaged in the work about ten or fifteen minutes when the engine came and knocked him down. That is the last he remembers. That he heard no bell ringing or any whistle blown, or any warning of any kind given; that he was stricken about half an inch from the (821) left temple on the forehead, going across the top of his head, and the bone on the left eye was broken or injured, and he was thrown on the right side of his shoulder; and was stricken across the breast, and suffered from his chest for a long time afterwards. Witness illustrated to the jury his position and that of the target and of the engine. Said he was relying on the rules, of which he knew, for his protection. That it was impossible for him to do the work well and at the same time keep a constant lookout for the movements of the engine. That if he put his whole attention on the painting he could not be on the lookout all the time. When he looked down he looked both ways. Looked down and did not see any engine. Thought he could get through painting before the engine came out of the coach-yard, and if it did come out he expected it to ring the bell or blow the whistle to give him warning. It was necessary for him to keep his eye on the target while he was painting because there were two colors. Had been employed by the defendant company for about three years; says he did not hear the bell ring. That he put his bucket over next to the rail, illustrating the position in which he stood and the point at which he put his bucket by means of photographs offered in evidence. The track was pretty fair, level and straight.
On redirect examination plaintiff stated that when he was doing this work in the manner he had shown the jury he was relying upon the rules of the company and the ordinance of the city of Charlotte for his protection. Wouldn't say that he had nothing else in mind. Thought if the engine came it would give some signal to get out of the way.
Plaintiff introduced Sherman Ludwick, who testified that he was a short block from where the plaintiff was painting. Saw him painting the target. When the train passed up the track and struck Mr. Smith, the witness heard them "holler"; saw the engine; (822) heard no bell ringing; no bell was ringing; could have heard it if it had been; the train was running 25 or 30 miles an hour.
The plaintiff introduced Kerry Reynolds, who testified that he was about 100 feet from the plaintiff at the time of the injury. The train was running 30 miles an hour. He says he saw that the plaintiff was *578 in danger and "halloed" at him twice to look out, and about that time it struck him.
Thomas Robinson, introduced by the plaintiff, says that he was working 15 or 20 feet from the plaintiff; that the switch engine was coming from the depot with a sleeper, and when it went down the main line it came in the coach-yard. The witness was busy wiping off the coach; the plaintiff was painting. The last witness saw of the plaintiff, the engine was as far as from "here to the middle of the street," and the witness heard Grant Wallace "holler," "I think we have struck Mr. Smith." I looked around at the engine and saw Grant pull the bell cord, and saw the plaintiff; did not hear the bell ring until after the plaintiff was struck, could have heard it ring; the train was moving 20 or 25 miles an hour; the engineer was on the opposite side from the plaintiff; saw nobody on the left-hand side; the fireman did not seem to be in his place.
M. L. Harris, witness for the plaintiff, testified that the train was running 10 or 15 miles an hour; heard no bell; could have heard it if it had been ringing; heard no whistle blow.
The defendant introduced the engineer, who testified that he saw the plaintiff painting and passed him several times; "I reckon a dozen times"; that he was not in his way, and if he had stayed where he was when the witness saw him, he was perfectly safe; he was perfectly safe where he was painting as long as he stayed there; the tender (823) obscured his view about 60 feet before he reached the plaintiff; engine was backing; the bell was ringing; that he was about 400 feet from the plaintiff when he first saw him; if there had been any danger, could have stopped; a man could stand between the target and the rail and let an engine pass; I have seen it done; no part of the engine struck him; it was the corner of the tender — what is called the pole socket.
The defendant introduced J. F. Boyd, who stated that he was painting targets on the morning of the injury, and that it required no skill to do so; witness was about 100 feet from plaintiff; witness illustrated how he would paint a switch target without any danger to himself.
There were several other witnesses whose testimony tended to sustain the contentions of the plaintiff and the defendant.
The plaintiff offered in evidence section 299 of the ordinances of the city of Charlotte, prohibiting the running of trains at a greater rate of speed than four miles an hour in the corporate limits of the city. At the close of the plaintiff's testimony, the defendant made a motion to nonsuit, which was denied. At the close of the whole evidence, the motion to nonsuit was renewed and overruled, and the defendant excepted. *579
We concur with his Honor in his ruling upon this motion. There was evidence sufficient and competent to be submitted to the jury upon the issues raised by the pleadings. He submitted the following issues:
1. Was the plaintiff injured by the negligence of the defendant's lessee, as alleged in his complaint?
2. Did the plaintiff of his own negligence contribute to his injury, as alleged?
3. If the plaintiff's negligence contributed to his injury, could the defendant's lessee, notwithstanding the said negligence of the plaintiff, have avoided the injury to him by the exercise of (824) ordinary care?
4. What damage, if any, is the plaintiff entitled to recover?
The defendant requested the court to charge the jury that if they believed the evidence, the answer to the first issue must be "No." The instruction was refused, and the defendant excepted. There was no error in refusing this instruction.
The court stated the contentions of the parties, charged the jury at length, explaining to them the law applicable to the testimony, and charged them that if they found that there was an ordinance in force in the city of Charlotte forbidding the running of an engine in the corporate limits at a speed greater than four miles an hour, and the engineer was running at a greater rate of speed than four miles an hour within the corporate limits in violation of the town ordinance, it would be evidence of negligence on the part of the defendant to be considered by them in connection with the other testimony. He also instructed them that it was the duty of the defendant's engineer to ring the bell while moving his engine in the yard, and to use all proper and reasonable efforts to avoid injuring the servants of the defendant engaged in work on the yard. He also instructed the jury in regard to the duty of the engineer to observe the rules laid down by the defendant. We think his Honor's instructions are fully sustained by the authorities prescribing the duty of the defendant under the circumstances testified to.
In Erickson v. R. R.,
In Schultz v. R. R.,
In Kelly v. R. R.,
In R. R. v. Henze,
In Felice v. R. R.,
In Promer v. R. R.,
The plaintiff swears that he knew the rules requiring the ringing of the bell, and he was relying on that for his protection; that it was impossible for him to do the work well and at the same time keep a constant lookout for the movements of the engine; that if he put his whole attention on the painting, he could not be on the lookout all the time. There was evidence proper to be submitted to the jury that the bell was not ringing and that the engine was moving at a dangerous rate of speed. We think there was ample evidence, if believed by the jury, to sustain their finding upon the first issue, and we find no error in the instruction to the jury as to the measure of duty which the defendant owed to the plaintiff.
The jury having found the second issue in favor of the defendant, it becomes unnecessary to examine the charge of the court in respect thereto.
His Honor instructed the jury that the burden was on the (828) plaintiff upon the third issue to show that, notwithstanding his negligence, the defendant could have avoided injuring him by the exercise of ordinary care; and if they found that the plaintiff had negligently placed himself in dangerous proximity to the defendant's track and he was engaged in his work with his head down and was unaware of the approach of the train, and if they further found that the defendant's *582 rules required its agents in charge of its trains, whenever they saw a person in such position, to sound the alarm whistle when necessary, and if they further found that the defendant's employee saw, or by the exercise of reasonable care could have seen that the plaintiff was in a dangerous position in time to avoid injury, and ran the train down the track without proper signal of the approach of the train or stopping it, and that this was the proximate cause of the plaintiff's injury, they should answer the third issue "Yes"; that the defendant contended that the plaintiff was not in a dangerous position until a second before the train struck him, and that after the defendant company discovered that he was in a dangerous position they did all they could to avoid the injury, and that it was impossible for them to avoid it that as soon as he placed himself in that dangerous position, warning was given and the brakes applied at the same instant he was struck; that if they found from the evidence that the plaintiff was in a place of safety up to the time he leaned over to get paint on his brush, and if they found that he did this, and it took him less than a second, and that he was stricken instantly upon leaning over, they would answer this issue "No"; but it was the duty of the plaintiff to establish his contention as to this issue by a preponderance of the evidence. There was no exception to this charge, and we think that there was evidence to be submitted to the jury to sustain that finding.
Upon a careful examination of the entire record, we think that his Honor's instructions are sustained by both authority and reason. (829) See, also, McLamb v. R. R.,
Judgment affirmed.
WALKER, J., having been of counsel, did not sit on the hearing of this case.
Cited: Lassiter v. R. R.,