Myers v. Norfolk & Western Railway Co.

Per Curiam. Tbis case was before tbe Court and is reported in 162 N. C., page 344, and in tbe opinion in tbat case tbe general facts are stated. Tbe case was tben tried under tbe Employer’s Liability Act, and tbis Court beld tbat tbe plaintiff was not engaged in interstate commerce. Tbe cause was tben tried under tbe law of tbis State, and from tbe verdict and judgment tbe defendant appeals, assigning numerous errors. We bave examined with care tbe exceptions set out in tbe record to tbe reception and rejection of evidence, and also to tbe charge of tbe court, and we think tbe case was substantially tried under tbe well-settled principles of law obtaining in tbis State. , Tbe motion to nonsuit was properly overruled. There were three questions presented: (1) Was tbe plaintiff an employee, acting within tbe scope of bis duty at tbe time of tbe injury? (2) Was be injured by tbe negligence of tbe defendant? (3) Did be so contribute to bis injury tbat tbe court can say as a matter of law tbat be is not entitled to recover ? The plaintiff’s evidence tends to prove tbat be was in tbe employ of tbe defendant to do whatever be was instructed to do — to work on tbe line of road, to run errands, go after tbe mail, tools, and other things; tbat be was under tbe control of Mr. Shaw, tbe foreman, and Mr. Lineberry, tbe assistant foreman; tbat on .the particular Sunday when be was injured be *235 was instructed by Mr. Lineberry to go to Naugatuck and get tbe mail for tbe company; that be was instructed to jump on a passing freight train; tbat be allowed two trains to pass by without catching them, and after being upbraided by Mr. Line-berry for not catching them, be was directed by Lineberry to catch a particular train passing tbe camp, being assured by him tbat it was safe to catch. In attempting to obey this command, be was thrown under tbe cars and bis leg amputated. Upon these facts being in evi-' deuce, we think bis Honor very properly overruled tbe motion to nonsuit. We cannot say tbat tbe plaintiff, as a matter of law, so contributed to bis injury as to bar a recovery, although tbe evidence shows tbat be sustained tbe injury by attempting to board a moving train. We do not intend in any way to impinge upon tbe well-established princixole laid down in Lambeth v. R. R., 66 N. C., 495; Burgin v. R. R., 115 N. C., 673, and other cases, in reference to getting on and off moving trains. -But in this ease tbe evidence shows tbat plaintiff was a new band, inexperi-. enced in railroading, and especially in boarding running trains, and tbe foreman knew it, and nevertheless peremptorily ordered plaintiff to board tbe train, and reprimanded him for not boarding tbe preceding train. Thus it would appear tbat plaintiff acted under duress, fearing to disobey bis superior’s orders, who bad tbe power to discharge him. Under tbe circumstances we think bis Honor properly left tbe question of contributory negligence to tbe jury, applying tbe rule of tbe prudent man. Upon a review of tbe whole record we are unable to see tbat any substantial error has been committed which warrants us in ordering another trial. No .error.