Lassiter v. Seaboard Air Line Railway

Connor, J., after stating the case: The defendant lodged several exceptions to his Honor’s refusal to give special instructions, and to the instructions given, but error is assigned only for the refusal to nonsuit and, what is equivalent, to instruct the jury that the injury sustained by plaintiff was the result of an accident. The uncontradicted evidence is that the rails weré-loaded in the usual way, and that the “fish bars” were suitable and usually used for standards. ' His Honor instructed the jury that there was no evidence that the cars were not properly loaded or that there were not a sufficient number of hands to assist in unloading. It is evident that plaintiff and Mr. Gain, who helped him, were able to and did lift one end of the rail over the standard. It does not appear that the fact that the standards were' not removed was the proximate cause of the injury. We do not find any suggestion in the evidence that the method of handling the rails was unusual or dangerous, provided a sufficient number of hands were furnished to lift them over the standard. His Honor eliminated every suggestion of negligence, other than the question whether Tussey, who gave the order, and Cain, who assisted the plaintiff in executing it, saw or could have seen by the exercise of ordinary care that the rail was hung. "We see no ground for exception to the measure of duty imposed upon them. It was undoubtedly the duty of the person giving the order to unload the rails to use ordinary care to see that they could be handled with safety, in. the manner directed by him. There is no evidence or suggestion that either of them did in fact see that the rail was “hung,” nor does it very clearly appear how it was “hung.” We are unable to find *486 any evidence that there was anything in the position of the rail to suggest to them that the end lifted over the standard would not, as others had done, similarly situated and handled, fall to the ground. All of the witnesses concur in saying that the rails were loaded in- the usual way; two or three had been unloaded without accident. The method pursued in unloading was not unusual; therefore unusual results could not be reasonably anticipated. We are unable to find any suggestion in the evidence explaining why the end of the rail, when lifted over the standard, rebounded. We, of course, know that there was some obstruction to the anticipated action of the other end of the rail which should and, but for some obstruction, would have moved upwards as the end next plaintiff went to the ground. The plaintiff, in answer to the question, “What caused it to spring back ?” said: “I suppose it got caught at the other end, or some way; it got down so quick it bounded in some way and flew back and struck me.” He further says: “I could not say how it was done; it came back with pretty smart force — very quickly.” In Keck v. Tel. Co., 131 N. C., 277, where it appeared that there was nothing unusual in the conditions under which the work was done — no lack of hands and “no mishap or danger anticipated” — the injury was held to be the result of an accident, which is “an event from an unknown cause, or an unusual and unexpected event from a known cause — chance, casualty.” Crutchfield, v. Railroad, 76 N. C., 322. In Martin v. Manufacturing Co., 128 N. C., 264, it is said: “Injuries resulting from events taking place without one's foresight or expectation, or an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected, must be borne by the unfortunate sufferer.” In Bryan v. Railroad, 128 N. C., 387, Douglas, J., said: “The employer is not responsible for an accident simply because it happens, but only when he has contributed to it by some act or omission of duty.” In this case a new trial was ordered, with the suggestion that a nonsuit should have been granted. Alexander v. Manufacturing Co., 132 N. C., 428; Frazier v. Wilkes, 132 N. C., 437. While we regret the painful injury which the plaintiff sustained, we are unable to see how, by *487 reasonable human foresight or precaution, the eccentric course of the rail could have been anticipated and therefore prevented. We cannot think that it was negligent to pursue a course which none of the witnesses suggest was either unusual or hazardous. Mr. Tussey says that he had been at that kind of work fourteen years; that he had ample force'. “It is always customary to take hold of the rail and throw one end off to prevent accident. Some men will throw quicker than others and let the rail fall down, and for this reason we have adopted the plan to throw one end off at the time. It makes it much safer than trying .to throw the entire rail off. It was the method adopted by all of the roads that I have worked for in unloading rails.” W. C. Wooten, who was section foreman and present when the accident occurred, says of the method of unloading.: “It is safer, one end at a time. If you try to pick up both at the same time, sometimes the rail will turn and catch your fingers.” This is.not contradicted, and is consistent with plaintiff’s evidence. We think that his Honor should have granted the motion for non-suit. Upon the whole of the evidence the plaintiff’s injury was the result of an unforeseen and unavoidable accident. There is Error.