BROWN, J., dissenting. This was an action to recover damages for an injury caused by alleged negligence on the part of defendant. No contributory negligence was alleged in the answer, and the cause was submitted to the jury on two issues: 1. As to the defendant's negligence causing the injury. 2. As to damages.
There was evidence tending to show that plaintiff on 11 July, 1904, at the time of the injury, was in the employment of the defendant as a hostler on the yard of the defendant at Winston, N.C. and it was his duty with his helpers, who were employed by the defendant, when any engine came in, to take charge of and coal it, clean out the fire, and put it away in its proper place. On the morning of the injury the engine had been moved up over the pit in which the fire was to be dumped alongside of the coal car from which the coal was to be thrown into the tender. That this coal car was standing on a track parallel with the one on which the engine was standing, and between the parallel tracks there was an open space, across which the coal was to be thrown. The engine had been standing with fire in it all night, and the fire had to be cleared from the engine and the water turned on the fire in the (532) pit while the coaling was in progress. After the fire had been cleared from the engine and thrown in the pit, on the occasion of the injury, the water was turned through the hose which was attached to a hydrant, when the hose blew out, so that the hose had to be fastened on *Page 420 again, and there was nobody to do this but the plaintiff; he was the only man to do this work around that point. The hydrant was in the open space between the coal car and the rear of the tender, and when the hose blew off, which had been insecurely fastened by the tank-man to the hydrant, the plaintiff squatted down by the tank with the back of his head towards the tender and was attempting to fasten the hose on the hydrant; he was 2 1/2 feet from the tender and about 8 feet from where the negroes were at work throwing coal straight across into the place in the front part of the tender for receiving and holding it.
The plaintiff, in his own behalf, testified that the lump of coal weighed about 100 pounds, and evidently described the size and shape of the coal by indicating the same with his hands. He was asked (p. 11, record), "How large was the coal?" and replied, "Of course, I could not tell the weight then, but the lump seemed to be about that long and about that large around. Kind of an odd shape; seemed to be about a 100-pound lump, something like that."The court, on stating this part of the testimony to the jury, said, "As I got his testimony down, it was a large piece of coal, about 20 by 20 inches and a 100-pound lump." There was no objection to this part of the statement of the court, and we take it that without question the witness, when he said, "About that long and that large around," indicated to the court and jury the size of the lump by the position of his hands or some other objective measurement.
On his examination in chief this is stated: That one of the negroes threw the lump of coal that struck the witness. On cross-examination he stated that he did not know which one of the negroes threw the (533) coal, because he could not see it leave their hands up on the car while he was down there discharging his duty, and for the same reason he did not know whether it went up on the tender and rolled off or struck the tender and fell off. In answer to a question by the defendant, the witness stated:
Q. Do you know who threw it? A. No, I do not know which one threw it, because I could not see it leave their hands up on the car, while I was there discharging my duty.
Q. You don't know whether it came directly from the shovel onto your head or whether it went up on the tender and rolled off? A. No.
Q. Nor whether it struck the tender and fell off? A. That is the information I had.
The witness further testified that the coal should have been thrown into its bed or basin in the forward part of the tender. The negroes were engaged in throwing coal in front end of the tender and did not have to throw the coal on the back end at all; that he did not know whether the boys saw him at the time; that they could have done so; he was at the *Page 421 rear end of the tender and on their side, but they knew he had to work all around them while they were coaling. The plaintiff was permanently injured and disabled. There was a motion for nonsuit, which was overruled, and the defendant excepted.
The court, after defining at length negligence and proximate cause, charged the jury in substance that if defendant through its agents failed to exercise proper care, that care which a prudent man should use under the circumstances, in throwing the coal from the car to the tender, and such negligence was the proximate cause of the plaintiff's injuries, they should answer the first issue "Yes." The charge also put the burden of the issue on the plaintiff. Defendant excepted. Verdict for plaintiff, and from judgment thereon defendant appealed. The statute known as the Fellow-servant Act, published as chapter 56, Private Laws 1897, where the same applies, has the effect of making all coemployees of railroad (534) companies agents and vice-principals of the company so far as fixing the company with responsibility for their negligence is concerned. While commonly spoken of as the "Fellow-servant Act," it is entitled "An Act to Prescribe the Liability of Railroads in Certain Cases," and it operates on all employees of the company, whether in superior, equal, or subordinate positions. The two hands, therefore, who were shoveling coal, while they were there as "helpers" to the plaintiff, were the agents of the defendant, and, contributory negligence on the part of the plaintiff not being proved or even alleged, if the plaintiff was injured as the proximate cause of their negligence the company is responsible.
We do not understand that the defendant controverts or desires to controvert this position, but rests its defense on the ground that there is no evidence offered which requires or permits that the plaintiff's cause be considered by the jury, and this on the idea, chiefly, that so far as the testimony discloses, it is just as probable that the injury was the result of an accident for which the defendant is in no way responsible, or for negligence which may be imputed to the defendant as an actionable wrong. While this may be the law under given circumstances, we think that the principle has no place in application to the facts of the case before us.
It is very generally held that direct evidence of negligence is not required, but the same may be inferred from facts and attendant circumstances, *Page 422 and it is well established that if the facts proved establish the more reasonable probability that the defendant has been guilty of actionable negligence, the case cannot be withdrawn from the jury, though the possibility of accident may arise on the evidence. Thus, in Shearman and Redfield on Negligence, sec. 58, it is said: "The plaintiff (535) is not bound to prove more than enough to raise a fair presumption of negligence on the part of the defendant and of resulting injury to himself. Having done this, he is entitled to recover unless the defendant produces evidence to rebut the presumption. It has sometimes been held not sufficient for the plaintiff to establish a probability of the defendant's default, but this is going too far. If the facts proved render it probable that the defendant violated its duty, it is for the jury to decide whether it did so or not. To hold otherwise would be to deny the value of circumstantial evidence. As already stated, the plaintiff is not required to prove his case beyond a reasonable doubt, though the facts shown must be more consistent with the negligence of the defendant than the absence of it. It has never been suggested that evidence of negligence should be direct and positive. In the nature of the case, the plaintiff must labor under difficulties in proving the fact of negligence, and as that fact is always a relative one, it is susceptible of proof by evidence of circumstances bearing more or less directly on the fact of negligence; a kind of evidence which might not be satisfactory in other classes of cases open to clear proof. This is on the general principle of the law of evidence which holds that to be sufficient and satisfactory evidence which satisfies an unprejudiced mind."
In accordance with this general doctrine, in the well-considered case of Howser v. R. R., 80 Md. 146, Roberts, J., says: "These and many English and American cases clearly establish the fact that it is not requisite that the plaintiff's proof in actions of this kind should negative all possible circumstances that would excuse the defendant. It is sufficient if it negatives all probable circumstances that would have this effect." InWhitney v. Clifford, 57 Wis. 156, Cassady, J., said: "The plaintiff is not required to prove his case so clearly as to exclude the possibility of any other theory." In Stepp v. R. R., 5 Mo., 229, it is held: "Direct evidence of the want of the exercise of due care is not to be required to be produced. Surrounding circumstances may afford as (536) conclusive proof as direct evidence." Applying these rules to the case before us, we think the plaintiff was clearly entitled to have his cause submitted to a jury, and the motion to nonsuit the plaintiff was properly overruled.
This was not an ordinary case of loading coal into a wagon or car where a lump of coal might roll at any time with no reasonable prospect *Page 423 of hurting anybody; on the contrary, these hands — and for their conduct, as we have seen, the defendant is responsible — knew that the plaintiff was working somewhere around and near the engine, and where, if a piece of coal rolled off, it was likely to strike him, and if a heavy piece should roll and strike, it would do him serious injury. They were therefore charged with a high degree of care in this respect. This statement imports no infringement on the doctrine which obtains with us, that there are no degrees of care so far as fixing responsibility for negligence is concerned. This is true on a given state of facts and in the same case. The standard is always that care which a prudent man should use under like circumstances. What such reasonable care is, however, does vary in different cases and in the presence of different conditions, and the degree of care required of one, whose breach of duty is very likely to result in serious harm, is greater than when the effect of such breach is not near so threatening.
Throwing this coal, some of it, at least, consisting of heavy lumps, into a tender, with a man walking around in a position where a miscalculation or wild throw was not unlikely to cause great damage, presents a very different proposition and demands a much higher degree of care than the ordinary loading of coal from one vehicle to another. These hands, then, charged with this knowledge and this degree of care, were given the task of throwing the coal from the car across the intervening space into the forward part of the tender; they were not to throw it into the rear of the tender, where the water tank of the engine (537) was placed, which was as high or nearly on a level with the railing of the tender. This was not the place for the coal, and any thrown there was very likely to fall off. The weight of the coal, a 100-pound lump, makes it very probable that one of the hands undertook to throw a lump of coal too large for him; most likely he undertook it without a shovel, as the size, 20 by 20 inches, would hardly permit that a shovel could be used for the purpose; and, staggering under the weight, he failed to clear the space or control its direction; the piece struck the railing of the tender, or outside and below the rails, and, falling to the side, struck the plaintiff and did the injury. This is not only very probable from the circumstances, but there is direct evidence to this effect. In answer to a question by the defendant, the plaintiff testified: "Q.: Do you know whether it struck the tender and fell off?" "A.: That is my information." If this is the way it occurred, and we think it much the most probable inference, it would, in our opinion, be a negligent act for one of those hands to undertake to throw a lump of coal of that weight across that space, when he must have known the chances were much against his success, and where a failure might cause death or serious *Page 424 injury to a coemployee working near. Indeed, there could hardly be a reasonable suggestion made on the evidence, with the duty incumbent on these men to observe a high degree of care, which would negative the existence of negligence. If they undertook to throw a lump of coal too heavy for them across the space, so heavy that they could not get it over or control its direction — and they must have known or should have known this when they lifted the coal — they would be negligent. If they threw the coal in the first instance, back on the water tank where it was likely to roll off, this would be a negligent act. If they continued to pile coal on the forward part of the tender, where it belonged, till (538) it was even with or above the top of the tender, so that the coal was likely to roll off, either directly to the ground or over the tank in the rear, it would be negligence to do this without warning to the plaintiff and giving him an opportunity to be on the lookout. They were in a position to note the condition of the coal, and the plaintiff was not. He was on the ground engaged in the necessary discharge of his duties and bending over in the effort to connect the hose with the hydrant.
While we have thus far made no reference to the doctrine of res ipsaloquitur for the reason that this doctrine is more usually invoked when nothing but the objective facts attendant upon an injury can be produced, while here, we have the additional evidence, frequently not obtainable, that the agents of the defendant, and for whose conduct the defendant is responsible, by their act caused the injury complained of, we are of opinion that the doctrine applies with full force to the facts of this case.
It was suggested for the defendant that res ipsa loquitur is only applicable in case of the failure of some mechanical appliance, or contrivance, or machine, which fails in some unusual and unexpected manner to do its work properly, and the default is imputed for negligence to its owner or the employee who is charged with the duty of keeping it in order. But the doctrine is not so confined. Courts of the highest authority have applied it in cases not at all dissimilar to the one before us, and approved text-writers state the principle to like effect. In Shearman and Redfield on Neg., sec. 59, it is said: "In many cases the maxim res ipsa loquitur applies. The affair speaks for itself. It is not that, in any case, negligence can be assumed from the mere fact of an accident and an injury, but in these cases, the surrounding circumstances which are necessarily brought into view, by showing how the accident occurred, contain without further proof sufficient evidence of the defendant's duty and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof that the (539) injured person is able to offer or that it is necessary to offer." In *Page 425 Hale on Torts, 482, it is said to apply "where the thing is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care." And in Labatt on Master and Servant, sec. 843, it is said: "The rationale of this doctrine is that in some cases the very nature of the occurrence may of itself and through the presumption it carries, supply the requisite proof. It is applicable when, under circumstances shown, the accident presumably would not have happened if due care had been exercised. Its essential import is that, on the facts proved, the plaintiff has made out a prima facie case without direct proof of negligence" — citing a large number of instances where the maxim was upheld, as when a piece of coal falls from the tender of a passing train and hits a section-hand who is standing a reasonable distance from the track (R. R.v. Wood [Tex. Civ. App.], 63 S.W. 164), and where a large piece of coal falls from a tub where it is being hoisted from the hold of a steamer.Joist v. Webster, Quebec, 15 C. S., 220.
In Scott v. Dock Co., 3 Hurl. and Colt, the plaintiff proved that while conducting his duties as customs officer he was passing in front of a warehouse in the dockyard and was felled to the ground by six bags of sugar falling upon him, and the principle is declared as follows: "There must be reasonable evidence of negligence, but when the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. In Jensen v. The Joseph B. Thomas, 81 Fed., 578, the principle is announced in almost identical words: "The occurrence of an injury may itself, in connection with other circumstances, sufficiently show negligence as to justify a judgment (540) for damages, where the thing causing the injury is under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if ordinary care is used." "And the principle was applied in a case where one of the vessels had set an empty water keg on the loose hatch-covers at the side of the hatch in such a position that an accidental shock or jarring of the covers might let the covers into the hatch while stevedores were working in the hold." See, also, McCray v. R. R., 89 Tex. 168[89 Tex. 168]. In this case it was held as follows:
"1. When a servant sues his employer for damages arising from injuries caused by the negligence of the latter, the plaintiff must prove the negligence of the defendant, and proof of the accident and injury alone *Page 426 will not be sufficient to authorize a recovery. But the circumstances attending the injury may, without any direct evidence, be sufficient to establish the fact of negligence.
"2. A brakeman, sitting on the side of a car in a train running between stations, was killed by a steel rail, part of the load of a car in front of him falling therefrom, one end striking the ground and the other sweeping alongside of the train and striking him. Without other proof of negligence in the loading on the car of rails, the circumstances were sufficient to take the case to the jury, and it was error to direct a verdict for the defendant."
In Howser v. R. R., 80 Md. 146, the maxim is held to apply where a plaintiff was walking along a footpath outside of the right of way and was injured by a half-dozen cross-ties which fell upon him from a gondola car attached to a train passing along the defendant's road. InSheridan v. Foley, 58 N.J. Law, 230, it is said: "It is urged, however, on behalf of the defendant, that the plaintiff was bound, in order to entitle him to a verdict, to prove affirmatively that the injury (541) which he received was caused by the negligent act of the defendant or his servants; that the mere proof that the plaintiff was injured by a brick falling from the hod of one of the defendant's hod-carriers, or from a scaffolding upon which some of the employees of the defendant were engaged in laying a wall, does not, standing alone, raise any presumption of negligence; and that, as there was no evidence offered to show under what circumstances the brick fell, there was nothing in the case to warrant the jury in inferring that the injury complained of was the result of the carelessness of the defendant or of his employees. While it is true, as a general principle, that mere proof of the occurrence of an accident raises no presumption of negligence, yet there is a class of cases where this principle does not govern — cases where the accident is such as, in the ordinary course of things, would not have happened if proper care had been used. In such cases the maxim res ipsa loquitur is held to apply, and it is presumed, in the absence of explanation by the defendant, that the accident arose from want of reasonable care."
In Armour v. Golkowska, 95 Ill. App. 492, it is held:
"1. Where an employee in a packing house, while at work at a table trimming meat, was injured by the fall of an empty barrel from the platform above her, and there is no evidence by way of explanation as to how the barrel came to fall, the doctrine of res ipsa loquitur applies.
"2. When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management *Page 427 use the proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care."
See, also, Electric Co. v. Sweet, 57 N. J., 224; Seybolt v. R. R.,95 N.Y., 562; Lyons v. Rosenthal, 11 Hun. (N. Y.), 46; Hart's case,157 Ill. 9; Byrne v. Brodie, 2 Hurl. and Colt, 721.
These authorities, we think, clearly establish that the maxim of (542)res ipsa loquitur applies in a case like the one before us. In the ordinary course of things, if these hands had been reasonably attentive to their duty and reasonably observant of proper care, the event would not have occurred. From the fact that it did occur and from the attendant circumstances and in the absence of any explanation, the inference of negligence was reasonable, and much the most probable, and in such case the order for a nonsuit would have been erroneous.
In the well-considered opinion of Mr. Justice Connor in Womble v.Grocery Co., 135 N.C. 474, it is established and declared that "this principle of res ipsa loquitur, where it applies, carries the question of negligence to the jury, not relieving the plaintiff of the burden of proof, and not, we think, raising any presumption in his favor, but simply entitling the jury, in view of all the circumstances and conditions as shown by the plaintiff's evidence, to infer negligence and say whether upon all the evidence the plaintiff has sustained his allegation." This was the course pursued by the judge below, who charged the jury that the burden was on the plaintiff to show by the greater weight of the evidence that the defendant was negligent and that the negligence was the proximate cause of the injury, explaining the meaning of the terms and further applying the facts as presented, but the burden was placed on the plaintiff throughout. There was no error, therefore, either in refusing the motion for nonsuit or in the charge as given.
Our attention is called to the case of Raiford v. R. R., 130 N.C. 597, as authority for holding that the facts of the present case present no evidence of actionable negligence. The case, we think, does not sustain the position. In that case a piece of iron fell from an engine, and, taking an eccentric course, struck and seriously injured the plaintiff, who was working near the engine. The iron had fallen by reason of a coworker having previously loosened or removed a nut that held the same in place. The only negligence alleged was the act of (543) the coemployee in unscrewing the nut. There was no testimony showing or tending to show that the nut had been improperly or negligently removed or that any injury was likely to follow, and the occurrence was held to be an excusable accident. In our case the very question is whether the act of the defendant was negligent in throwing *Page 428 the coal, and, as we have endeavored to show, there was ample evidence from the facts and circumstances that those employees must have been or very probably were negligent, or the event would not have followed. There are cases in other jurisdictions which appear to conflict with the decision here made, but a careful examination will disclose that most of them can be distinguished and upheld on grounds entirely consistent with the principles declared in the present opinion. And where this cannot be done, we think those decisions are not in accord with the great weight of authority in cases of this character.
There is no error, and the judgment below is
Affirmed.
WALKER, J., concurs in result.
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