Heilig v. Southern Railway Co.

*471 MANNING, J. This appeal being taken from tbe judgment of nonsuit entered on defendant’s motion made at the close of plaintiff’s evidence, it is well settled by the decisions of this Court that the evidence “must be construed in the view most favorable to the plaintiff, and every fact which it tends to prove, and which is an essential ingredient of the cause of action, must be taken as established, as the jury, if the case had been submitted to them; might have found the facts from the testimony.” Freeman v. Brown, 151 N. C., 111; Morton v. Lumber Co., ante, 54, and cases cited. The recital of the evidence will be sufficient to show that the case ought to have been submitted to the jury. It is not our duty to determine its weight, or to pass upon the credibility of the witnesses. It appears from the evidence that it had been the custom, for nine years, of the employees of defendant to ride on its engine passing from Salisbury to Spencer, and that no objection was made to this by the defendant; that it was customary, for them to ride on the steps of the engine or anywhere else thereon, where “they would not be crowded off by others”; the distance was only two or three miles, and the usual track taken by the engines was not the one next to the coal chute. We held, in Farris v. R. R., 151 N. C., 483, that the defendant is charged with knowledge of a custom of its employees in crossing its tracks, where the custom had existed as long as six months. Likewise, it must be held charged with knowledge of a custom of its employees to ride on its engines running from Salisbury to Spencer, in the discharge of their duties, where such a custom is shown to have existed for nine years, without the slightest protest or objection. As the defendant has, therefore, permitted this custom to become established among its employees, it is clear that the defendant owed them the duty to use due and reasonable care to transport them in safety. It cannot permit obstacles to exist so close to the tracks traversed by such engines as to endanger the life and limb of its employees using its engines in accordance with a custom so long established. The hazard to employees riding on the engines traversing the track nearest the coal chute having been increased by the greater width of the engine, it became the duty of the defendant to move back from the track the piers or posts supporting the coal chute, which increased the peril to its employees, or to discontinue the use of that track for such engines. If plaintiff had begun to alight from the engine, the rule that persons injured by alighting from a moving train cannot recover for injuries received, does not apply in this case with *472 absolute strictness. Reeves v. R. R., 151 N. C., 318. Tbe evidence that this plaintiff was so injured does not clearly appear; he says that he had put one foot on the stirrup of the engine preparatory to alighting, when he was stricken and knocked off. In Texas Pacific Ry. Co. v. Swearingen, 196 U. S., 51, a case similar to this in the particulars of injury received by the ap-pellee, the Court held: “Knowledge of the increased hazard resulting from the negligent proximity to a railroad track of a structure will not be imputed to an employee, using ordinary diligence to avoid it if properly located, because he was aware of its existence and general location. It is for the jury to determine from all the evidence whether he had actual notice.” The plaintiff in the present case testified that he was looking ahead, but- on. account of the darkness he could not see the post which struck him and did not know of its dangerous proximity to a passing engine. In returning from Salisbury, where he had been directed to go in the discharge of his duties, and in returning in the manner he was directed to return and as it was the custom of the employees to return, the master (the defendant) owed him the same duty as it did to provide a safe way for transporting him to Salisbury from Spencer, and in so returning he was doing the work directed by his superior to be done, lie was still the servant engaged in his master’s business and in the scope of his employment. The duty of the master under such conditions has been so frequently stated that it has become elementary. In our opinion, the case ought to have been submitted to the jury, and in allowing the motion of nonsuit there was error, for which a new trial is ordered. New trial.