Battle v. . Cleave

Hoke, J. The facts in evidence appearing from plaintiff’s own testimony, the only witness examined, tend to show that in June, 1918, in the employment of defendants as log scaler, he was out at one of the camps, several miles from the plant or central station at Crestmont; that the superintendent of the logging force, a Mr. Heatherby, had come out to the camp over the company’s road on a lever or push car, the car having just been repaired, and, when they were ready, the two put the ear back on the track and started on their return to Crestmont. Soon after starting the two front wheels of the car “dropped from the track.” Heatherby said, in explanation, that “they had tightened both front *114 wheels on the axle and one of them should be loose. The car then ran on without incident till they were going over a trestle near Crestmont, at 4 or 5 miles an hour, when it again left the track, throwing plaintiff to the ground, a fall of 8 to 10 feet, and the car fell on him, causing painful, serious, and protracted injuries. Heatherby, who was not hurt, lifted the car off plaintiff, and, in doing so, said: “They had not adjusted the car properly, and it would have to go back to the shop.” On this, the principle evidence relevant to the inquiry, the jury have established liability of defendants, and, on careful consideration, we find no reason for disturbing the results of the trial. It is chiefly objected for defendants that the trial court should have allowed their motion to nonsuit, but the exception is without merit. Under our decisions bearing on the question, the derailment of the car raises a presumption of negligence sufficient of itself to carry the case to the jury on the issue as to defendant’s breach of duty. Wallace v. Power Co., 176 N. C., 558; Mumpower v. R. R., 174 N. C., 742; Overcash v. R. R., 144 N. C., 577. And, in addition, there are the direct statements of the superintendent, made at the time of the occurrence, tending to show negligence in the recent repairs of the car made at the company shops. It is earnestly insisted for defendant, however, that judgment of non-suit should have been entered by reason of contributory negligence on the part of the plaintiff. Such a judgment has been given in rare instances on the grounds suggested, and where, from the proof offered in support of plaintiff’s cause of action, it clearly appears that his own negligence has been the proximate cause of the injury or one of them. Dunnevant v. R. R., 167 N. C., 232; Mitchell v. R. R., 153 N. C., 116; Strickland v. R. R., 150 N. C., 4. The burden of showing contributory negligence, however, is on the defendant, and the motion for nonsuit may never be allowed on such an issue where the controlling and pertinent facts are in dispute, nor where opposing inferences are permissible from plaintiff’s proof, nor where it is necessary in support of the motion to rely, in whole or in part, on evidence offered for the defense. Russel v. R. R., 118 N. C., 1098; House v. R. R., 131 N. C., 103. In the present instance, while the plaintiff’s testimony shows that the two front wheels had run off the track as they started back to the plant,' and the superintendent had said they had tightened both wheels when one should have been loose, it also shows that the car had just been repaired at the shops; that the superintendent had himself just brought it out from the plant without mishap; that it was put back on the track and was being operated under his immediate supervision, and, under all the facts and attendant circumstances, there was nothing to show that *115 the defect suggested by the superintendent gave import of such menace as to constitute contributory negligence in the further use of the car, and assuredly it did not follow as a conclusion of law from plaintiff’s proof. It is further objected that his Honor charged the jury “that there was no evidence of contributory negligence on the part of plaintiff as alleged in the answer.” The only contributory negligence stated and relied upon in the answer is that plaintiff was negligent in operating the car, and in the way he endeavored to jump off same when it became derailed at the trestle, and a perusal of the facts in evidence shows that the charge of his Honor is fully justified and sustained. We find no reversible error in the record, and the judgment for plaintiff is Affirmed.