Bird v. . Leather Co.

IIoKE, J., after stating the case: The Court is of opinion that neither objection assigned for error by defendant can be sustained. The facts show that defendant, a corporation chiefly engaged in the manufacture of leather and extraction of tannic acid, in connection with and in aid of its primary purpose, owns and operates a railroad, having its own engines, cars, crews, etc.; and in such case, the Court has held that the act known as the Eellow-servant Act, chapter 56, Private Laws 1897, applies, and will affect the right of litigants for actionable negligence occurring in that department or portion of their work. Hemphill v. Lumber Co., 141 N. C., 487. This being true, the Judge below could not have properly charged, as requested, that there was no evidence to go to the jury on the first issue. The testimony in the case shows that plaintiff, engaged in the performance of his duty, was injured because some cars, stopped on an incline thirty steps away, commenced to move, *287 and, rolling down an incline, struck the car on which plaintiff was standing doing his work, and caused the injury. These cars were placed there by the engine crew, and should have been securely stopped by brake or scotched on the incline to remain till they were moved into the yard by plaintiff’s force. He had given no order for moving these cars, and to move them upon him without warning at the time, and engaged as plaintiff then was, was very likely to cause injury to some one; and the injury resulted. There is no explanation given by direct evidence as to the starting of the cars, but it can hardly be explained without imputing negligence to some of the defendant’s employees. Certainly, the great probability is either that the engine crew, whose duty it was to place and scotch these cars, had not done their work properly, or some one of the force, without direction and without the exercise of proper care, had started the cars at this inopportune time. In either'case, the plaintiff was entitled to have the question go to the jury. In Fitzgerald v. Railway, 141 N. C., 530, the Court has held: “Under the Fellow-servant Act, which operates on all employees of railroad companies, whether in superior, equal, or subordinate positions, if the plaintiff, a hostler of the defendant, was injured as the proximate cause of the negligence of his helpers in shoveling coal from a car into a tender, the defendant is responsible. Direct evidence of negligence is not required, but the same may be inferred from acts and attendant circumstances, and if the facts proved establish the more reasonable probability that the defendant has been guilty of actionable negligence, the case cannot be withdrawn from the jury, though the possibility of accident may arise on the evidence. When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not *288 happen, if those who have the management use the proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.” Applying these principles to the facts disclosed, there was no error in refusing the request of defendant on the first issue. On the second issue, the Court is of opinion that there is very little evidence that tends to show contributory negligence, and certainly none that would justify the charge requested by defendant. The plaintiff testified that he was applying the brakes in the customary and usual way when he was injured by a collision with these cars that had rolled unexpectedly down the incline. Stationed between two cars loaded with bark, it is not likely he could have noted the approach of the other cars, and the evidence shows clearly that he did not note their approach. So far as appears, he was in the customary position to do the work, and he had taken the best one that was open to him. He was not injured at all by reason of the position he had taken as affected by the condition and action of the cars or hands where he was then working; and he was not, under the circumstances of this case, required to anticipate a negligent act on the part of the engine crew or his own co-employees. Beach on Contributory Negligence, sec. 38. The case is not unlike that of Hudson v. Railway, at the present term, and the Court is of opinion that there is no error shown which gives defendant any just ground of complaint. No Error.