Hines v. Atlantic Coast Line Railroad

Glare, C. J. According to the allegations and the evidence, this was an intrastate transaction, the baggage of the passenger being checked from Oak City to Greenville, N. C. The evidence for the plaintiff on this motion to nonsuit must be taken in the light most favorable to him, and presents two causes of action: the negligent failure of defendant company to supply the plaintiff with the necessary equipment with which to perform the duties of his position, although he had asked for such equipment and been promised the same; and the negligent failure of the defendant company to indicate to the plaintiff that the baggage which had been brought by it from another point and delivered at Oak City was of excessive weight. The evidence that the plaintiff had been injured by lifting a piece of baggage previously in 1913, and had complained to the superintendent, repeatedly asking for a truck, which the superintendent often promised to send but did not, was evidence of negligence sufficient to go to the jury. Pigford v. R. R., 160 N. C., 93. That he continued in the line of his employment, expecting compliance with the promise to send the truck, did not bar him by reason of any alleged assumption of risk. C. S., 3466, 3468. As said in Pigford’s case, supra, a servant is not required to leave the service or refuse to go on with the work unless the danger is obvious or he knows and appreciates the danger. In this case there was no mark on the baggage indicating that it weighed over 150 pounds. The fact that the company in bringing the baggage from Norfolk to Oak City had made no such indication by checking or otherwise, was evidence of negligence. In Cherry v. R. R., 174 N. C., 265, the plaintiff recovered the damages sustained in lifting a large cross-tie in the course of employment. C. S., 3465, provides that “any servant or employee of any railroad company operating in this State who shall suffer injury” in the course of his employment . . . “by any defect in the machinery, ways, or appliances of the company shall be entitled to maintain his action”; and *75 in this case the plaintiff was entitled to have the jury determine whether the defendant company was negligent in failing to supply the truck; whether the plaintiff assumed the risk in attempting to lift the baggage; and whether these were the proximate causes of the injury. This being an intrastate matter, under C. S., 3467, the plaintiff was entitled to have his cause submitted to the jury, for, as therein provided, contributory negligence being no longer a bar to an action by an employee against the railroad for injuries sustained during his employment and the assumption of risk were for the jury, the burden of proof being upon the defendant. The baggage was at the station, it was necessary to put it on the outgoing train, it was the plaintiff’s duty in the course of his employment to put it on, and he had to do it without other means at hand than his own strength, the company having failed to furnish him with proper appliances. He had no warning that the baggage was excessive in weight. As to the 'second ground of negligence alleged: The failure of the defendant company to indicate that the baggage complained of was of excessive weight, the testimony of the plaintiff was that the company issued a different kind of check for baggage over 150 pounds weight. This baggage having been brought there from Norfolk by the defendant company, the transfer of it to another line' of the defendant and the checking of it from Oak City to Greenville was a part of the intrastate carriage, and our State statute applies. From both points of view, i. the failure to supply a truck for lifting baggage after notice to-the superintendent of an injury previously sustained and the failure of the company to comply with its repeated promises to furnish such truck, and also by reason of this baggage being-left at Oak City without any indication of its excessive weight, the evidence should have been properly submitted to a jury. The burden of proof of the allegations of contributory negligence rests upon the defendant, Sims v. Lindsay, 122 N. C., 682, and numerous cases cited thereto in the Anno. Ed. Assumption of risk is also a matter of defense analogous to contributory negligence to be passed upon by the jury who are to say whether the employee voluntarily assumed the risk; it is not enough to show merely that he worked on, knowing the danger. Lloyd v. Hanes, 126 N. C., 359, and numerous cases cited thereto in the Anno. Ed.; C. S., 3468. It is worthy of note that this injury occurred seven years ago. There should not be such delays in the courts. 'The judgment of nonsuit must be Eeversed. Stacy, J., concurs in result.