Buchanan v. Ritter Lumber Co.

Hoee, J., after stating tbe case: It was earnestly urged for error by defendant tbat bis Honor refused to nonsuit plaintiff both on tbe pleadings and tbe evidence; but tbe position cannot be sustained. It is fully established with us tbat an employer, in tbe exercise of reasonable care, must provide for bis employees a safe place to do bis work, and a failure of duty in this respect will constitute negligence. Cook v. Cranberry Furnace Co., 161 N. C., 39; Jackson v. Lumber Co., 158 N. C., 317; Tanner v. Lumber Co., 140 N. C., 475. An examination of tbe authorities will show tbat tbe position is very insistent in tbe case of railroads where a breach of duty in this respect is not unlikely to result in serious and often fatal injuries, and, in various cases, it has been held tbat these logging roads come clearly within tbe principle and are held to tbe same standard of care. Worley v. R. R., 158 N. C., 490; Sawyer v. R. R., 145 N. C., 24; Hemphill v. Lumber Co., 141 N. C., 487. In reference to these obligations, in Sawyer’s case, supra, it was said tbat “These logging roads, in various instances and in different decisions, have been described and treated as railroads and held to tbe same measure of responsibility ánd tbe same standard of duty,” citing Hemphill’s case, supra, and Simpson v. Lumber Co., 133 N. C., 96, and Craft v. Timber Co., 132 N. C., 156; and further: “This duty arises not so much from tbe fact tbat railroads are common carriers or g'licm'-public corporations as from tbe high degree of care imposed upon them on account of tbe dangerous agencies and imple — 44 — ments employed and the great probability that serious and in many instances fatal injuries are almost certain to result in case of collision.” Considering the present case in the light of these decisions, it is clear, we think, that the court would not have been justified in directing a non-suit, there being facts in evidence tending to show that for a week or more the defendant’s road had been left with a limb or snag deep in the ground at one end and leaning over towards the railroad track in such manner that it day by day scraped along the sides of the engine and cars and where it was liable, at any time, to cause an injury of some sort to the train or its employees. Hudson v. R. R., 142 N. C., 198; Drum v. Miller, 135 N. C., 204. Again, a nonsuit would have been improper because of facts in evidence tending to show that, after the intestate was knocked off the engine and was prone upon the track, the train, running at only 3 or 4'miles an hour, continued to move along the track for 70 or 75 feet before the fatal injury was received, and meantime persons on the train and off endeavored in every way to attract the attention of the engineer and failed to do it until one of them went right up to the cab, the testimony permitting the inference that he was looking out to the side and entirely inattentive to the movements of his train or the safety of the persons who were on it. In that aspect of the case the defendant company might well be held responsible by reason of the failure to avail itself of the last clear chance of avoiding the injury; this whether the intestate was or was not guilty of contributory negligence, as the term is generally used and applied. Snipes v. Mfg. Co., 152 N. C., 42. It was further contended that there was error committed in modifying certain prayers for instructions by defendant, chiefly in reference to the question of contributory negligence. Bequest No. 2, being to the effect that a servant is required to exercise ordinary care for his own safety, to observe the machinery and appliances used in connection with his work, and to discover those dangers which a man of ordinary prudence would discover, and, if he fails in this duty and is thereby injured as an immediate result, he cannot recover damages. “Therefore the court charges you that if you find by the greater weight of the evidence that plaintiff’s intestate was riding upon the rear of defendant’s engine, in plain view of the obstruction upon or over the track, and if you find there was an obstruction and he failed to observe same, and further failed to avail himself of the safety appliance, called the hand-rod in the evidence, and you further find that by using same he could have saved himself, the court instructs you that he was guilty of contributory negligence, and you would answer second issue ‘Yes.’ ” The court gave the instructions as prayed, with the modification, after the words, “could have saved himself,” by adding: “and you find that he was negligent in regard to these — 45 — omissions and bis neglect contributed to the injury.” In other words, the court referred it to the jury to determine whether, upon the facts in evidence as suggested in the prayer, the intestate was negligent in failing to observe and note the obstruction and in failing to use the hand-rod, and whether such neglect on his part was a contributory cause of the injury. In Russell v. R. R., 118 N. C., 1098, and in cases before that time, it was declared to be the correct principle that if, on a given state of facts, two men of fair minds could come to different conclusions as to the existence of negligence, the question must be determined by the jury, and that a like principle should prevail in reference to the question of proximate cause. The position has been since repeatedly upheld with us, and is also approved by the Supreme Court of the United States as the correct rule for the trial of causes of this character. Graves v. R. R., 136 N. C., 13; Ramsbottom v. R. R., 138 N. C., 39; Harvell v. Lumber Co., 154 N. C., 254; Alexander v. Statesville, 165 N. C., 528; Grand Trunk R. R. v. Ives, 144 U. S., 408; Davidson v. Steamship Co., 205 U. S., 187. Applying the rule to the facts in evidence, we think that his Honor was clearly right in submitting the question as to the conduct of the intestate to the decision of the jury. True, there was testimony on the part of the defendant to the effect that he was “top-loader,” a position of authority, and that he had entire charge of the train and its crew; but there is also the permissible view that he was a young man of 21 or 22 years of age, getting only $1.50'to $2 per day; that he had only held the position a short while, and that his duty as top-loader was only to see that the -logs were properly laid and secured on the cars, and that he directed the engineer only in the sense that when they were engaged in loading he signaled the engineer when to move back and forth and as the necessities of the work required; and, in any event, he was not in charge of the train at that time nor in a position to direct or control its movements. He was only out on this running-board where the hands were accustomed to ride on their way to work, the train being in motion, and the duty on him, under such circumstances, to observe and note an obstruction of this character and correctly estimate its proper effect — a small stick,, leaning over towards the rail- — was a very different obligation from that incumbent on defendant company and its employees, charged with the especial duty of keeping the track and roadbed in a reasonably safe condition. In the latter case it would undoubtedly import menace tending to inculpate, whereas, to the intestate, it might very well be a question of debate and one that, under our law, must be referred to the jury. On this exception there seems to be some discrepancy between the defendant’s assignment of error and the case on appeal, for, in the — 46 — assignment, defendant substitutes for bis prayer tbe modification of it as contained in bis Honor’s charge, but tbe true bearing of tbe exception is readily ascertained from tbe case on appeal, showing that bis Honor modified defendant’s prayer for instruction, as stated. Tbe further exception, that bis Honor prefaced this portion of bis charge by stating “this is defendant’s prayer for instruction,” is without merit. Tbe statement and tbe entire context shows that tbe court intended it as a modification of defendant’s prayer, and tbe jury must have so understood it. Tbe prayer, in effect, requested tbe court to .rule on tbe question of intestate’s conduct as a matter of law, and bis Hon'or submitted it for tbe consideration of tbe jury; and tbe position, as we have stated, is in accord with our decisions. Tbe court was further requested to charge tbe jury that, “if they found that defendant bad provided a band-rail, conveniently located for tbe use and safety of persons riding upon tbe running-board at tbe rear of tbe tender, and that intestate was riding upon said running-board while tbe engine was in motion .and was standing up in easy reach of said band-rail, with bis hands in tbe bib of bis overalls, or in front of him, and be stood so at tbe time of bis fall, this within itself would be contributory negligence, and they should answer tbe second issue Nes.’ ” Tbe court gave this and another prayer substantially similar, adding thereto that under tbe circumstances suggested tbe jury would answer tbe second issue “Yes,” provided they found further that tbe failure to use this band-rail “proximately contributed to tbe injury.” . It is tbe accepted position, in actions of this kind, that on tbe two 'issues of negligence and contributory negligence tbe negligent conduct of defendant or of tbe claimant has no controlling significance unless it has been tbe contributory and proximate cause of tbe injury, or one of them. In a case at tbe present term, McNeill v. R. R., 167 N. C., 390, the charge is approved to tbe effect “That in order to enable you to answer tbe first issue (that as to defendant’s negligence) ‘Yes,’ you must find that tbe train bad no headlight, and that not having a headlight was tbe cause and tbe proximate cause of tbe injury”; and Associate Justice Allen, in a well sustained opinion, shows that this is an essential requirement to tbe proper decision of such an issue. Tbe same principle prevails on tbe issue as to contributory negligence; it is a very important part of its correct definition, that it is tbe proximate cause of tbe injury. Numerous authorities with us are in support of tbe position, and they bold, too, that where negligence is shown to have caused an injury, it is only in exceptional cases that tbe question of proximate cause can be — 47 — withdrawn from the jury. Boney v. R. R., 155 N. C., 95; Farris v. R. R., 151 N. C., 489; Coley v. R. R., 129 N. C., 407; Brewster v. Elizabeth City, 137 N. C., 392. It is true that the testimony shows that the intestate was standing on the running-board and had no hold of the hand-rail. It was shown, also, that another man standing by him was enabled to save himself after he saw the stick by catching hold of the hand-rail; but, as we have heretofore stated, the intestate had no part in directing.the train and was not in a position to control its movements. He was not charged with the special duty of looking ahead for its safety, nor did he have anything to do with keeping the roadway in repair. He was just riding on the engine to his work as the others were accustomed to do, and, as we have heretofore stated, the character of the obstruction was not such as to affect him with notice of a probable injury as a conclusion of law. If he had fallen off by the ordinary jars and jolts of the train’s movements, there might be more force in the position, but it is not at all a necessary conclusion that the intestate could have saved himself if he had taken hold of the rail, and, on all the facts as presented, we concur in his Honor’s view that, on the issue as to contributory negligence, the question of proximate cause was for the jury. Defendant excepted, further, that his Honor in charging the jury “failed to instruct them at any point as to the law arising on the evidence and contention of defendants that some one of certain employees pushed plaintiff’s intestate from the engine and caused his death.” This, in any event, was only an omission on the part of his Honor, and the proceeding could very well be sustained on the ground that, if defendant desired that such a position be referred to, he should have made a request to that effect, as he did on the other points. Pardon v. Paschal, 142 N. C., 538; S. v. Worley, 141 N. C., 764; Simmons v. Davenport140 N. C., 407. But it is not necessary to rest the matter here on this principle. From a perusal of the record it plainly appears that the principal issue between the parties on the testimony was whether the -intestate was negligently knocked off by the stick or snag, or was pushed off by one of the other hands, and defendant’s counsel therefore did not think it necessary to make a request on the subject. Plaintiff’s complaint was .that intestate was knocked off by this stick, negligently left as an obstruction on defendant road, and not otherwise, and there was no occasion for his Honor to make special reference to a different cause. In support of this view, it was stated on the argument for appellee, and not challenged, that counsel for plaintiff admitted in the argument before the jury that if the intestate was pushed off by one of the employees, his client had no cause of action, and this is no doubt — 48 — the reason that the capable and diligent counsel did not think it necessary to have any reference to the matter made by the judge. The exceptions to testimony are without merit, and were very properly not insisted on in defendant’s brief. Lynch v. Mfg. Co., 167 N. C., 98. After careful consideration, we are of opinion that no reversible error appears, and the judgment on the verdict must be affirmed. No error.