Hamilton v. . Lumber Co.

There was evidence tending to show that, in September, 1910, the intestate, an employee, was run over and killed by a train of defendant company; that, at the time of the occurrence, the intestate, a youth between eighteen and nineteen years of age, was acting as fireman, he and the engineer composing the train crew, the duties of intestate being to fire the engine, couple and uncouple the cars, and change the switches; that the train in question consisted of an engine and twelve or thirteen logging trucks or cars, two of them, several cars back from the end, being loaded with a barrel of oil and feedstuff, and was backing at the time with the purpose of cutting out these loaded cars and leaving the empties on a siding near at hand; that with this end in view, and while the train was in motion, approaching the switch, the intestate left the engine and went along the skeleton cars of the train and to the forward end of the loaded cars and took a position to uncouple the empty cars, in front. About the same time, one Lonnie Emerson, a young man who was also on the engine, but without regular duties, so far as the testimony shows, was requested by the engineer to go forward and assist the intestate by uncoupling the empties, which were just behind the loaded cars, the intent being for intestate (522) to change the switch, throw the empty cars in front and rear onto the siding, and allow the loaded cars to remain upon the main line; that when Lonnie Emerson had reached his position, he looked off for a moment, and when he looked back the intestate, who had been sitting, as stated, on the front part of the loaded cars, where they were to be uncoupled, had disappeared; he had fallen between the cars and two of them had run over him, causing injuries from which he died in about three-quarters of an hour. There was also evidence tending to show that this plan was what is termed a flying switch; that it *Page 421 was not a safe and proper way to pursue in cutting out the loaded cars, and was forbidden by the company's rules. Speaking to this question, plaintiff, H. K. Hamilton, intestate's father, on his examination in chief testified as follows: Q. You have heard the kind of switching that was being done on this road. Will you state from your knowledge as an engineer and from your experience how that work should be done and the proper way to do it? The Court: He can state what is a safe and an unsafe way. A. The safe way would be to back your train to the switch and stop and cut off your cars. Q. Can it be done any other way? A. Yes, there are other ways that it is frequently done. Our rule book says you can't make a switch that way. Q. From your knowledge of this kind of work as an engineer, other than by the usually accepted rules of trainmen doing this kind of work in this part of the country, is it considered a safe and proper way to uncouple cars when moving down grade without stopping? Q. Have you had experience in running log trains? A. Yes, I have handled quite a bit. I will answer that it is not safe to make a flying switch anywhere. Q. What kind of switching is that which has been described? A. That is a flying switch when you have a car to shift without stopping the train, or the train is in action all the time. It is true, the witness, in his cross-examination, qualifies this (523) statement to some extent, but, as we have said in a recent case, "We are not at liberty to select the more favorable portions of a witness's statement and act on it for defendant's benefit. We have repeatedly held that, on a motion for nonsuit, the evidence making for plaintiff's claim must be taken as true and interpreted in the light most favorable to him." Dail v. Taylor, 151 N.C. 289; Deppe v. R. R.,152 N.C. 80. As the case goes back for a new trial, we do not deem it desirable to make any extended reference to the inferences permissible and arising on the testimony, but, applying the rule well recognized with us, "That if two minds could reasonably draw different conclusions from the evidence, and one of them would be favorable to plaintiff, the matter is for the jury" (Allen, J., in Harvell v. Lumber Co., 154 N.C. 262), we are of opinion that the question of defendant's negligence should be submitted for the jury's decision. On the conduct of the intestate, while we have held that our statute, known as the Fellow-servant Law, Revisal, sec. 2646, applies to these logging roads, we do not think that the terms of the law, giving a right of action to an employee injured by reason of defective "machinery, *Page 422 ways, or appliances," refer to conditions as now disclosed in the testimony; the term "ways," we think, having reference rather to roadways and objective conditions relevant to the inquiry and which it is the duty of the employer to provide. The negligence, if any, imputable to defendant on the testimony, is by reason of negligent directions given and methods established, by the employer, subjective in their nature and to which the statute on the facts presented was not intended to apply. It is well understood, however, that an employer of labor may be held responsible for directions given or methods established, of the kind indicated, by reason of which an employee is injured, as in Noble v. Lumber Co., 151 N.C. 76;Shaw v. Mfg. Co., 146 N.C. 235; Jones v. Warehouse Co., 138 N.C. 546, and, where such negligence is established, it is further held, in this jurisdiction, that the doctrine of assumption of risk, in its technical acceptation, is no longer applicable (Norris v. Cotton Mills, 154 N.C. 475; Tanner v. Lumber Co., 140 N.C. (524) 475), but the effect of working on in the presence of conditions which are known and observed must be considered and determined on the question whether the attendant dangers were so obvious that a man of ordinary prudence and acting with such prudence should quit the employment rather than incur them." Bissell v. Lumber Co.,152 N.C. 123; and, on the issues, as to plaintiff's conduct, the fact that the particular service was rendered with the knowledge and approval of the employer or his vice principle or under his express directions, if given; also, the employee's reasonable apprehensions of discharge in case of disobedience, etc., may be circumstances relevant to the inquiry. Hicks v. Mfg. Co., 138 N.C. 322. In this view, we think the statement of the witness Lonnie Emerson was properly received in evidence, "that the engineer requested the witness to go out on the train and help McCoy." It tended to show that the intestate was doing his work with the knowledge of the engineer, and it was also relevant on the question whether he was not acting under the engineer's orders. Applying the rules as they obtain with us, to the facts in evidence, we are of opinion that there was error in directing a nonsuit, and the order to that effect must be set aside. Error. Cited: Russ v. Harper, ante, 450; Hamilton v. Lumber Co., 160 N.C. 48;Pigford v. R. R., ib., 99, 100; Poe v. Tel. Co., ib., 316; Beck v. Bank,161 N.C. 206; Johnson v. R. R., 163 N.C. 442; Tate v. Mirror Co.,165 N.C. 280, 284; Ridge v. R. R., 167 N.C. 521. *Page 423