Usury v. . Watkins

67 S.E. 926, 152 N.C. 760, 1910 N.C. LEXIS 370

• Court: Supreme Court of North Carolina
• Decided: April 20, 1910
• Status: Published

Opinion

Per Ouriam.

The assignments of error present two questions: 1. Is there any sufficient evidence of negligence? 2. In view of the action of plaintiff in respect to the defendant Watkins, can plaintiff recover of his principal, the railway company?

We are unanimous in the opinion that there is no sufficient evidence of negligence, and that his Honor should have so held.

The train was a long freight with passenger coach attached at end. It was properly equipped with air-brakes and managed by a competent engineer. In starting the train and taking up the slack, it is conceded that much jolting and jarring is inevitable. We do not think the evidence is sufficient to show that the jolting complained of was due to the negligence of the engineer, or could have been reasonably avoided in starting so long a train, or that the engineer managed .the train in a negligent manner. We are somewhat confirmed in this view by the action of the plaintiff at the close of the evidence, who was manifestly unwilling to ask a verdict against the engineer Watkins, upon the evidence.

If the engineer was not guilty of negligence, then upon the evidence of this case the employer could not be held. Smith v. R. R., 151 N. C., 482. We recur to what is said in Marable v. R. R., 142 N. C., 557: “In tailing passage on a freight train a passenger assumes the usual risks incident to traveling on such trains, when managed by prudent and competent men in a careful manner.” We see nothing that takes this case out of this rule.

In this view it is unnecessary to consider the second ground so elaborately discussed before us.

Error.