Byers v. Boice Hardwood Co.

BeogdeN, J. Tbe first group of exceptions relates to evidence to tbe effect tbat the rules requiring brakemen to brake from tbe front of tbe car bad been violated by employees other than tbe deceased. Tbe evidence for tbe defendant, coming from numerous witnesses, tended to show tbat tbe rules of tbe company prescribed tbat a brakeman should brake from the rear of tbe car, and tbat William Price, in open violation of tbe rule, undertook to brake from tbe front of tbe car, and tbat such violation of tbe rule was tbe proximate cause of bis death. Tbe evidence for plaintiff tended to show tbat no such rule bad been promulgated, and if such rule bad been prescribed, it bad been so openly and frequently violated as to work an abrogation or revocation thereof. Any reasonable and proper rule, designed for tbe protection of an employee in performing bis duties, will bar recovery provided such rule is alive and in force, and such violation was tbe proximate cause' of tbe injury. Biles v. R. R., 139 N. C., 528; Boney v. R. R., 155 N. C., 95; Fry v. Utilities Co., 183 N. C., 281; Hayes v. Creamery, 195 N. C., 113. But if such rule has been openly, constantly and habitually violated for such length of time tbat tbe employer in tbe exercise of ordinary care and diligence knew or should have known of such habitual nonobservance, then tbe rule is deemed to be waived or abrogated. Hence, tbe evidence objected to was competent upon tbe vital question as to whether tbe rule in controversy was alive and in force. Another group of exceptions relates to tbe ruling of tbe trial judge in instructing tbe jury tbat contributory negligence, if any, of plaintiff’s intestate was not a complete defense and bar to recovery under our statute. C. S., 3467, has been construed in many decisions of this Court. McKinish v. Lumber Co., 191 N. C., 836; Stewart v. Lumber Co., 193 N. C., 138; Jones v. R. R., 194 N. C., 227; Hawkins v. Lum- *78 her Co., 198 N. C., 475. An examination of the charge to the jury discloses that the trial judge correctly applied the law as set forth in the decisions. Another group of exceptions relates to the charge of the trial judge upon the question of damages. The record discloses that the trial judge applied the law as announced in Ward v. R. R., 161 N. C., 179, and in Pickett v. R. R., 117 N. C., 616. There was exception to the failure of the trial judge to sustain the motion of nonsuit. Obviously, this ruling was correct. There are certain other exceptions in the record, but none of them are sufficient to overthrow the judgment. Indeed, a careful perusal of the record discloses that the merits of the case rest upon an issue of fact upon which the evidence was conflicting and irreconcilable. Hence, the verdict of the jury determines the rights of the parties. No error.