Bateman v. . Brooks

167 S.E. 627, 204 N.C. 176, 1933 N.C. LEXIS 354

• Court: Supreme Court of North Carolina
• Decided: February 8, 1933
• Status: Published

Opinion

Clakkson, J.

The defendant at the close of plaintiff’s evidence and at the close of all the evidence made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions and in this we can see no error.

We think the evidence of plaintiff was sufficient to be submitted to a jury and fully warranted the verdict and judgment. The action is for actionable negligence. We think the evidence supports fully the allegations in the complaint. The defendant denied negligence and set up the plea of contributory negligence. The plaintiff was an employee, a brakeman for the defendant Ritter Lumber Company’s railroad, and had been in the employ of defendant Lumber Company for four years when injured, on 14 July, 1931. At the time of the injury he was 23 years old, weighed 190 pounds, earning $3.25 a day, “was healthy and stout as a mule.” The train ran over his left leg and it had to be amputated about three hours after the injury, about five inches above the knee joint and he is a cripple for life. The train he was working on was standard gauge. The Lumber Company had a large band mill at Rainbow Springs, and the railroad ran about 7 miles into the woods to get timber from the lands of defendant Lumber Company to haul it to the band mill.

C. S., 3467, is as follows: “In all actions hereafter brought against any common carrier by railroad to recover damages for personal injury to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, however, that no such employee who may be injured or hilled shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”

C. S., 3468 : “In any action brought against any common carrier under or by virtue of any of the provisions of this article to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risk of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee or the death or injury was caused by negligence.”

C. S., 3470: “The provisions in this article relating to liability for damages shall also apply to logging roads and tramroads.”

In Stewart v. Lumber Co., 193 N. C., at p. 141, the following observation is made: “But since the act of 1919, chap. 275, C. S., 3470, same applies with equal force to logging roads and tramroads.” Lilley v. Cooperage Co., 194 N. C., at p. 255; Moore v. Rawls, 196 N. C., at p. 129; Sampson v. Jachson Bros., 203 N. C., at p. 417.

All the evidence was to the effect that the defendant, Jess Brooks, was the foreman or superintendent, an alter ego of defendant Lumber Company. Ro binson v. Ivey, 193 N. C., at p. 811. At the time plaintiff was injured, eight cars were attached to the engine, heavily loaded with 20 logs to a car, going down hill on a 7 per cent grade. The track was 56 inches wide and the brake wrench was 18 to 20 inches long, which was given plaintiff to use.

Plaintiff, unobjected to, testified:

“Q. What orders did Jess Brooks give you about the matter, if any?

A. A few days before I got hurt they suggested not to slide no wheels and I made the statement I could not do it the way we had to apply the brakes and he said to run along slow and do it.

“Q. Who? A. Jess Brooks.

“Jess Brooks was superintendent and train foreman over all the trains and woods. Before this time, he told us what to do with the train. He told us to go in there and apply the brakes on this car and run along slow and do it. Well, as I stated a while ago, a few days before I got hurt there Jess Brooks told me to quit sliding the wheels. That means if you slide them on the rail you wear them out.

“Q. How would you slide them? A. By tying up the brakes too tight, and I told him I could not keep from sliding them the way we had to brake.

“He said keep going over them and they would not slide. Had to tie the brakes up and if you tied them up with the train standing still and then move it the wheels would be sliding. He said to keep going over the brakes and release them so as not to slide the wheels; if a man goes over the bralces to release them, have to go in between them on the ground to do it. . . . Had to put the wrench in the socket, it was over 15 inches inside the rail and had to put them in and pull around and after went so far couldn’t pull any further and had to take it out and set it back again. To do that I had to go in between the cars. . . . When you went between the cars to apply this brake and brake wrench you had to step over the rail to the brake if you had any power to put the brake on.

“At the time of the accident, the track where I got hurt was built right in the branch, branch on each side of the track, and it had rained that day and all wet and it was put up on rocks right in the creek. I was pulling the wrench to tighten the brake tighter, and when I did that and put more power on it to pull it tight, my hand slipped off of it. I was walking while I was putting it on, the train was moving. I was doing it that day just like I had always done it. . . . Mr. Brooks, foreman of the defendant company, was present at the time when he saw me step in between these moving cars to apply this Jim-Crow wrench. I couldn’t say how many times; he was with us several days. On the occasion of my injury on 14 July, 1931, I stepped in across the steel rail to apply these brakes between the cars.

“Q. State why you put your foot across this steel rail at the time? A. "When you reached over here to tie up your brakes you have to have both hands in there and you can’t tell where your feet are going, just like a blind duck, and when you put your hands over here you have to put your foot inside to maintain your balance.

“My right foot was over. My left leg was cut off. I was on the right side of the car going down the hill. It was the wheel of the rear that caught me instead of the front one; the car was right behind me, had to walk right in front of it to tie up the brake.”

In Bradford v. English, 190 N. C., at p. 745, citing numerous authorities, Varser, J., speaking to the subject, said: “The instant case comes within Tate v. Mirror Co., 165 N. C., 219; Pigford v. R. R., 160 N. C., 101. An employer of labor may be held responsible for directions given, or methods used by reason of which an employee is injured. It is as much the duty of the master to exercise due care to provide the servant with reasonably safe means and method of work, such as proper assistance in the performance of his task, and it is to exercise due care to furnish him a safe place and proper tools and appliances.” Robinson v. Ivey, 193 N. C., 812. Again in Herring v. R. R., 189 N. C., at p. 290, citing numerous authorities, we find: “It is well settled law that railroad companies, in the conduct of their business, have a perfect right to make and promulgate reasonable rules and regulations. To be binding, they must be properly promulgated and in full force and effect — a living rule — and not revoked or abrogated by other inconsistent rules and regulations or orders. With knowledge or acquiescence of the master, either express or implied that they have been habitually violated, they are ordinarily regarded as a dead rule, waived, abrogated or revoked.” Hamilton v. R. R., 200 N. C., at p. 563.

If the defendant company or its alter ego, Jess Rrooks, ever promulgated a rule that defendant in using the wrench should not go in between the cars, it was a dead rule. The alter ego Brooks “saw me step in between these moving cars to apply this Jim-Crow wrench. I could not say how many times.” Then from plaintiff’s testimony, “To do that, had to go in between the cars.”

As said in Robinson case, supra, “without obedience, we would have chaos and anarchy, the industrial life would be stagnant.”

Another aspect: Plaintiff testified:

“I first tied one brake up and went to the other one and had to pull my Avrench out and set it back in to tighten it better and I tried to put it back in and my hand slipped and I fell. I hollered when I fell. After I hollered some of the other crew hollered at the engineer and he stopped then I imagine as quick as he could and it dragged me about 18 feet and it Avas against my leg skidding the wheel was. The engine dragged me 15 to 18 feet after I fell, and when he stopped the slack in the cars behind run down and ran over my leg. My leg is gone. It ran over it. Hurt me. It ran over my leg right there; one of the loaded cars, three or four thousand feet of logs on it. Some air brakes on these cars but in shape so could not use them. Train line was broke and air hose gone. The brakes had been in this condition 4 or 5 months. Air brakes are used on car to apply the brakes and stop the train. . . .

“Q. Do you knoAV yourself Avhat could have been done if there had been air brakes on the car ?

“Defendants object, overruled, exception and assignment of error.

“A. They could have applied that air and held them ears off of me, the slack. I had been working there 4 years. Had air brakes before: had until 3 or 4 months.

“Q. I believe you stated this air brake business was what you had • complained to Mr. Brooks about?

“Defendants object, overruled, exception and assignment of error.

“A. It had been suggested to Mr. Brooks that air brakes were necessary.

“I don’t remember his answer. That had been called to his attention. About 4 or 5 months before this they let them go down; I mean didn’t keep them -coupled and the air lines down; ‘let them go down,’ means didn’t keep their equipment up, train lines and things and get the brake off and not put them back. They did not have any air in them.” . . .

H. N. Younce, a witness for plaintiff, testified, in part r

“They were using hand brake or Jim-Crow brake and air brake. I know what the condition of the air brakes was at the time. I left the shop 5 months before the accident.

“Q. What was the condition of them at that time?

“Defendants object, overruled, exception and assigned error.

“A. They were bad.

“After I quit working in the shop 4 or 5 months before this, the brakes were out of repair. I didn’t have the proper equipment to keep them in repair. I suppose Mr. Brooks, the superintendent, knew about this. I talked to him about it. . . . Air brake is brake that works in harmony with the hand brakes and if the rear end car on the train is in excellent condition and the next car to the engine is out of condition the whole train is out of condition because the air brakes operate from the engine. ... I know that they used the hand brakes right along with the air brakes.”

Frank Ledford, a witness for plaintiff, testified, in part:

“They were using hand brakes on the train. The air brakes were not any good. They couldn’t be used because the air holes were gone. . . . If we had had air brakes against the engine, each car would have stopped just where it was; stopped if the engine stopped. . . . This is not the only job I have seen the Jiru Crow used on that is not standard. The brakes are used from wheel. Wheel stands up on a staff waist high. Brake on that car is on platform and to apply it stand on the car. To apply the Jim Crow have to walk on the ground and walk in between them.”

Jess Brooks, defendant, testified in part, on cross-examination:

“You can use air brakes on any per cent grade you want to, but can’t use in safety without hand brakes on steep grade.

“Anywhere where yon can’t hold with your engine, can’t use air brakes; they would help to some extent. Air brakes are and are not used in emergency cases. If you didn’t keep your air applied all the time to help hold the cars back, but if something should happen you would apply your air brakes, you could stop quicker in case of emergency. I don’t know whether he would have used the air brakes or not. He was going so slow one way could stop as quick as the other. If the air brakes had been applied it would have helped stop the cars if he had used it, but he might not have used it. I didn’t have them repair those because I didn’t want them repaired. They might have stopped the train quicker; don’t know they would have used them.”

W. T. Latham testified in part, for defendants, on cross-examination:

“If your air brakes are in proper condition and your air line in proper condition, if you apply the air brakes it will stop the cars in a reasonable time.

“Q. I ask if the air brake system is in proper condition and properly, applied is it the best known system to stop a car quick ?

“Defendants object, overruled, exception and assignment of error.

“A. Tes, I think the air would stop the car quicker than the hand brake, if properly applied.”

None of these exceptions and assignments of error can be sustained. All of these witnesses were trained men in the particular avocation. They had knowledge and experience.

“It is the witness’ impression, from conditions actually observed and noted by him. Even if it should be regarded as more strictly ‘opinion evidence,’ when it comes from a source of this kind, from one who has had personal observation of the facts, and from practical training and experience is qualified to give an opinion which is likely to aid the jury to a correct conclusion, such evidence is coming to be more and more received in trials before the jury. McKelvey speaks of it with approval as ‘expert testimony on the facts.’ McKelvey, p. 230.” Davenport v. R. R., 148 N. C., at pp. 294-5.

In Street v. Coal Co., 196 N. C., page 183, it is there held:

“Where an inference is so usual, natural or instinctive as to accord with general experience its statement is received as substantially one of fact — part of the common stock of knowledge.” 22 C. J., p. 530; Britt v. R. R., 148 N. C., 37.

Again, it is well settled in this jurisdiction that it is not necessary to cite authorities if incompetent evidence is admitted over objection, but if the same or substantially the same evidence is given without objection, the benefit of the exception is ordinarily lost. In Moore v. Rawls, 196 N. C., 125, the matter of logging roads is thoroughly dis cussed. In that case, there is nothing said in regard to air brakes. In fact, it is undisputed on the record that they were used by defendant Lumber Company and needed repair.

Ray Williams, a witness for defendant, on cross-examination, said:

“This air brake is always used in connection with the Jim Crow. It all worked together on that job, air and Jim Crow all operated same brake. I don’t know how long before Bateman got injured they had not had any shop man to repair that brake; not any there at that time.”

Moral Culberson, the engineer, a witness for defendant, on cross-examination, testified:

“The reason we didn’t have air brakes the loading crew of the Ritter Lumber Company had knocked them out of order. Brooks knew about that and had not had them repaired.”

We can see no error as to the charge on the measure of damages. The court below charged correctly as to diminished damages under the statute if the plaintiff was guilty of contributory negligence, to which there was no exception. None of the exceptions and assignments of error can be sustained.

After a careful review of the record, able briefs of litigants and the painstaking charge by the court below, covering every aspect of the law applicable to the facts, we do not think there is any prejudicial or reversible error on the record. The questions were mainly of fact for the jury to determine. The judgment of the court below is

Affirmed.