Bryan v. Southern Railway Co.

Eueches, C. J. Action for damages'. Tbe plaintiff belonged to wbat be called a floating squad or gang of bands on tbe defendant’s road. It seems 'that 'there were five of them belonging to this “gang,” and one Whitley is designated by tbe plaintiff as “boss” of tbe gang. At tbe time of tbe injury complained of, this squad, consisting of said Whitley, tbe plaintiff and three others, were engaged in loading a car of a construction train with tbe timbers of 'an old bridge at Third Creek. Among this timber was an old sill or stringer, eight inches thick, sixteen inches wide and 'thirty feet long; and in [388] attempting to put tiiis piece of timber on the car tbe plaintiff was injured. Tbe plaintiff’s account of tbe matter (and it is his testimony that is relied on to malee out tbe oaise) is substantially as follows: That after having loaded oithier timbers, snob as cross-ties, Whitley told them to' put this heavy piece on the oar; that they rolled if up the bank near tbe car and lifted one end on the oar; that one of the men (Signuam) putt a pieice of scantling on the car under the sill and the other end of the scantling on his shoulder, to hold that end of the sill on the car, until 'the other enid conld he raised up' anid put ou the oar; but by some means, while they were attempting’ to raise ■tire other end, Sigttnan’s scantling slipped, the en'd of the si'll on the ear slipped off and fell upon plaintiff and injured him. It is contended on behalf of plaintiff that Whitley was “boss” of the squad; that he ordered the hands under him to put this sill on the car; that i-t was too heavy to' be handled with the force he had; that he should have known this, 'and it Was negligence in 'him to order them to' put it on tire oar, for which negligence the defendant company is liable. The plaintiff also contends that at the time the injury occurred, Whitley was on the car, when he should have been on the ground helping to' raise the sill, 'and in this he was guilty of negligence, for which 'the defendant company is liable. It is also contended on the part o>f the plaintiff that he was unacquainted with such work; relied upon the judgment of Whitley, and for that reason wias not guilty of contributory negligence; and that the Court properly instructed the jury that he was not. In 'answer, as we think, to Some of these positions, we quote from the plaintiff’s testimony as follows: Questions, by plaintiff: “Describe exactly and correctly how it was that this tiling happened ? Answer’. “In noising [389] tine timber, Mr. Sigmlan., whenever be raised one end, would put 'the scantling under it for us to raise the other end. The other men lifted this end up-, go-t away from it and fell back. I was the 'third man from the end. There were tw'o men between me and the end of the timber.” Question. “How did you dome to be working for the road ?” Answer. “I hired to Mr. Whitley.” Question. “What position -did he-hold?” Answer. “He Was boss of the floating gang of the Soulthern road.” Question. “Who had charge of the force that day?” Answer. “Mr. Whitley.” On cross-examination: Question. “You started to do it with the- crowd you had; you saw the size of it, and you and four other men tried to put that piece of timber on the car ?” Answer’. “Yes, sir.” Question. “You thought you could put the timber up ?” Answer. “Yes, sir; I went to work a;t it because Mr. Whitley told me to.” Quesltion. “Didn’t you think you could do it too; don’t put it all on Mr. Whitley because be is not here; didn’t you think you could do it?” Answer.* “Yes, sir; I thought we could put it up.” Question. “What has been your means for making yonr living ?” Answer. “Oarpenter work.” Question. “What wages were you able to command before receiving this injury? Answer. “$1.75 to $2.25 a day.” Question. “I understand you to say -that you got $1.75 to $2.25 a day?” Answer. “I have got it, but not with that force.” Question. “W'hat were you getting on that force ?” Answer. “One dollar a day.” The defendant is not liable- for the negligence of Whitley as am alter ego if he was gu-illty of negligence, as there is no eidence that he had a right -to- discharge 'the plaintiff. Dob [390] bin v. Railroad, 81 N. C., 446; Kirk v. Railroad, 94 N. C., 625; Mason v. Railroad, 111 N. C., 482. If tihiere was'negligence in one, it seeans to us tibere was negligence in all tibe gang and not in tibe defendant rolad. There is no evidence going to show but what five men were as many as: were needed to do Ube ordinary work this gang bad to do. If this piece of timber was too- heavy to- be handled by them, there is no evidence that the defendant knew it, or’ ought to have known it; nor chid the defendant know that they would undertake to put it on the ear. Besides, it was -no piece of machinery, about Which the plaintiff was not as good a judge as Whitley, or anyone else in the “gang.” The plaintiff admit® in Ms evidence that he thought they could put it on the car. And it seems they would have done so but for tli'e fact that Sigman’s scantling slipped, and the piece of timber they were trying to load fell. We see no negligence in the matter, but, from plaintiff’s evidence, regard it -as one of those unfortunate accidents that happen, 'and will continue to happen, in the performance of any heavy work, and the plaintiff assumed ithe risk. And we are of the opinion that defendant’s motion to dismiss, under the statute, should have been allowed, and there was error in refusing the same. Error.