Patton v. Western North Carolina Railroad

*462 Merrimon, J., (after stating the facts). There seems to be no well settled rule that classifies the agents and servants of a common employer, whether natural or artificial, first, into such as have authority to represent, act for and in the place of the employer in respect to the persons, business, matters and things wherewith they are charged; and secondly, such as have no such authority, but are merely fellow'-servants. But without regard to such rule, there is no reason why such authority may not be specially conferred upon any such agent or servant. In this case, the burden of proving the authority — its extent and compass — by competent evidence, would rest upon the party alleging it, unless the nature of the agency or employment implied its existence and extent. Thus, an employer might confer upon a particular laborer, charged to do a particular sort of service, but who simply by the nature of his employment would have no authority to represent or bind his principal in any respect, power to employ other like laborers with himself to do the service to be done, to direct and command them when, where, and how to work, to control and superintend them, and to discharge them from employment in his discretion, although he should labor with and as one of them And there can be no question, that the employer would be answerable for the misfeasance or non-feasance of such agent in the course of his employment, and in the exercise of the power thus conferred upon him. This is so, because the agent in such case, would be expressly authorized to represent, act for and in the place of his employer in the business designated and within the compass of the power conferred. And so in the case before us, although the section master or foreman might not have authority arising from the nature of his employment, to bind the defendant for his acts towards and his commands to his fellow-servants, yet, if the defendant conferred upon him power and authority to employ laborers — fellow'-laborers with himself — to work on the sec *463 tion of the road wherewith he was charged, and authority to superintend them, to give them orders and commands in the line of work to be done, which they were bound to obey, and to discharge them from such employment, in his discretion, as alleged in the complaint and as the evidence introduced on the trial tended to prove, the defendant would be liable for his misfeasance and non-feasance in the course of the exercise of his authority thus conferred by it. This is so upon the plainest principles of law applicable to and governing the relations of principal and agent towards each other and third persons. This case is not like the ordinary one of injury done by one fellow-servant acting as foreman or leader of several or many laborers, to one of his fellow-servants. The complaint expressly alleges that the section master named, was agent and servant, and had “ full power and authority of the said defendant to hire and discharge hands and servants in that behalf on said section, and who was the superior of the said plaintiff in that behalf, whose orders and commands in the line of said service as the agent, foreman and boss of the said defendant, the said plaintiff was lawfully bound to obey,” and there are other similar allegations to the same effect. Evidence was introduced on the trial to prove this material allegation, and the jury found by their verdict that it was true. So it appears that the section master in this case was not simply a fellow-servant of the plaintiff, but as well the agent of the defendant, charged with- authority to employ, control and command the plaintiff, as to the labor he should do on the railroad of the defendant while he was so in its service, and to discharge him from such service, just as its President or other leading executive officers might have done; and the defendant must therefore be held liable for his misfeasance in the course of his agency, just as if the same had been done by its chief executive officer. Dobbin *464 v. The Railroad Company, 81 N. C., 446; Cowles v. The Railroad Company, 84 N. C., 309. We think that the principal and real issues raised by the pleadings were not submitted to the jury. Except that as to damages, those submitted involved the ascertainment of evidential facts bearing upon the issues raised. The questions of fact as to the agency of the section master — the commands he gave the appellant — the injury sustained by the latter — the knowledge of the appellant that it was dangerous to jump from the car while it was swiftly moving, and that he might by ordinary care have known this fact, were questions arising in and embraced by the issues proper, and the jury might — ought—ordinarily to have determined them under proper instructions from the Court, in passing upon the principal issues raised by the pleadings. The statute {The Code, §§391-398,) does not contemplate or require, that an issue shall be submitted to the jury as to every important material fact controverted by the pleadings, nor is it necessary, expedient, or proper to do so. The principal issues — those raised by the constitutive allegations of fact — should always be submitted, and issues as to important essential facts controverted by the pleadings, may in some cases be properly submitted, but a great number of them confuse the minds of the jury, while they frequently afford one side or the other opportunity to magnify and give undue weight to a particular fact, and, sometimes, obscure the main issues. This should be guarded against. It seems to us that the principal issues presented by the pleadings, in addition to that as to damages, were: 1st. Was the plaintiff injured and endamaged by the default and negligence of the defendant ? 2d. If so, did the plaintiff by his own default and negligence contribute to the injury he so sustained ? These would have brought out the whole merits of the matter in litigation. The complaint alleges important evidential facts, denied by the answer, and thus issues *465 are raised. Surely such, issues are not to be submitted to a jury. Only the issues raised by the constitutive facts alleged on one side and denied by the other in the pleadings, should be so submitted. McElwee v. Blackwell, 82 N. C., 345; Miller v. Miller, 89 N. C., 209; Overcash v. Kitchie, Ibid., 384 ; Swann v. Waddell, 91 N. C., 108. The Court denied the appellant’s motion for judgment upon the verdict of the jury upon the issues submitted to them, and gave judgment for the appellee. Although it does not appear so affirmatively, it does by implication, that it decided upon the findings upon the fourth and fifth issues, that there was contributory negligence on the part of the appellant, and based its judgment upon this principal ground, and, probably, upon the further ground, that the injury was occasioned by the act of a fellow-servant. We have already seen that the latter ground was unfounded. It appears that the section master was actively prosecuting the work of the defendant he had charge of, and he, and by his command, the plaintiff and another fellow-servant in that connection, got upon a passing freight train, to go some distance to a place where proper work was to be done. The train was heavily laden and going swiftly — how swiftly does not appear — up an ascending grade half a mile in length. While it was thus moving, and passing by the place where the work referred to was to be done, the section master commanded the appellant to jump from the train, which command he at once obeyed, and in doing so, sustained the injury because of which he complains in this action. It seems that this command was given and promptly obeyed, without hesitation. It was rash, negligent, unreasonable and unwarranted, but the danger to be encountered in obeying it, was not so manifest and so great, as under the circumstances, to render a prompt obedience to it contributory negligence on the part of the appellant. ' An ordinary laborer on railroads— *466 one of ordinary experience — might make a leap without injury — he might not unreasonably believe that he could, taking proper care, and especially so, when commanded to do so by a railroad employé of long experience, who had the right to command him in the course of his duty. While to jump from a rapidly moving train of cars is very hazardous, and ordinarily to do so, is negligence, it is not contributory negligence where the plaintiff — a laborer on the railroad — is suddenly commanded by his employer or its agent to do so, in the course of his employment, and the command at once obeyed from a sense of duty, and without waiting to think of and consider the hazard. Such a case is exceptional. The agent of the employer suddenly commands the laborer to do an extra-hazardous act in the course of his duty — one that may, though not probably, be safely done by observing due care — one that must be done at once, if done at all. The laborer obeys the command promptly, nerved only by a faithful sense of duty, and as a consequence suffers serious bodily injury. In that case, the injured party does not, in legal contemplation, contribute to his own injury. The facts and circumstances were such as that he might, when suddenly called on, not unreasonably believe that the command was a proper one, that he ought to obey. Although the act was hazardous, it was not essentially dangerous. It was done suddenly and in obedience to the command of one who had the right to direct "the laborer in the course of his duty. The latter had but a moment to think of duty — a moment to think of danger. The law attributes the injury in such case, to the negligence of the employer; its agent gave the unwarranted, negligent command, the injured party simply obeyed, and was not negligent because under the circumstances he did obey. It would be unreasonable and unjust to allow the employer to have immunity from civil liability for its own negligence, *467 or that of its agent, thus resulting in injury to a faithful servant. We therefore think the Court erred in deciding that the appellant could not recover because of his contributory negligence. The appellant might insist upon a new trial, but he asks only that judgment be entered here upon the verdict of the jury in his favor. We think he is so entitled. The judgment of the Superior Court must therefore be reversed, and judgment entered here upon the verdict for the appellant. It is so ordered. Error. Reversed.