Purcell v. Southern Railway Co.

Avery, J.: The conductor, while in charge of an independent train, was a vice-principal, and his acts were in contemplation of law the acts of the railway company. Mason v. Railway, 111 N. C., 482; Turner v. Lumber Company, at this Term. Strangers are warranted in assuming that the servants of a railway company will discharge their respective duties, and are not negligent in acting on that assumption. Tillett v. Railroad, 118 N. C., [738] 1031 at p. 1045. The servants themselves have the right to expect and demand that reasonable care be exercised by the company in providing for their protection. Mason v. Railroad, supra; Chesson v. Lumber Company, 118 N. C., 59. The conductor, who was the embodiment of the authority of the company, was negligent in ordering any movement of the train without warning to the plaintiff, if he had reasonable ground to apprehend that without such caution the plaintiff, acting within the scope of his ordinary duties, might be subjected to danger from such movement. Little v. Railroad, 118 N. C., 1072; Blue v. Railroad, 116 N. C., 955; Emry v. Railroad, 102 N. C., 209 and 234 ; Tillett v. Railroad, 118 N. C., 1031 ; Turner v. Lumber Company, supra. Though there is conflict in the testimony as to the question whether the conductor was in the habit of taking the place of the brakeman by uncoupling ears, it was not disputed that it was a duty which the brakeman was accustomed to perform, and which he was justified in assuming devolved upon him when he was injured. The plaintiff was not negligent in preparing in the usual way to uncouple the cars, and in subjecting himself only to such danger as he knew to be incident to discharging that duty. If the conductor knew that the plaintiff usually descended from the top of the cars for that purpose, and in doing so necessarily placed himself in a perilous position, he was culpable, if he anticipated his subordinate, and without warning to him or in any way looking to his safety ordered the car to be moved suddenly forward, and by such carelessness he subjected the company to liability for any damage that might have reasonably been expected to ensue from his omission to give such warning, and that might have been averted by giving it. [739] Acting under tbe instruction given by the court, the jury must have found from the testimony that it was not in the usual line of the conductor’s but was in the usual line of the plaintiff’s duty to uncouple the cars, and that the conductor, knowing that a sudden and unexpected starting of the train without notice to the plaintiff would probably endanger his safety, ordered it to be moved without giving warning to him. The defendant had no cause to complain of the instruction of the court that the conductor could change his own relation to the company from that of alter ego to that of a fellow-servant of a brakeman by volunteering to anticipate the plaintiff in the performance of his ordinary duty. If the conductor had ordered the fireman to do an act which might reasonably have been expected to endanger the brakeman, and which did result in injury to him, the company would have been answerable for the natural consequences of his order. It would be unreasonable to hold that, by doing the careless act himself instead of ordering another who felt constrained to obey to do it, he relieved the company of responsibility. Qui faeit per aliurn faoit per se is the maxim which applies where, as vice-principal, he compels another to do what is culpable. It would be illogical to say that, where he directs or orders, he utters the command of the company and adopts for it the act of the employee who obeys, and yet when he does the act in proper person he descends from the role of vice-principal to that of servant. The evidence of a juror cannot be heard to impeach his own verdict by showing how the damage was assessed. Johnson v. Allen, 101 N. C., 137; Jones v. Parker, 97 N. C., 33; State v. Royal, 90 N. C., 755 There was, therefore, no error in refusing to grant a new trial upon the affidavit setting forth information derived from jurors as to740 what occurred in their own private consultations. The truth of the allegation could not have been shown except by allowing one of the jurors to become a witness, and this the policy of the law will not permit. The judgment is affirmed. Affirmed.