Upon the evidence, the issues should have been submitted to the jury.
New trial.
Fleming v. Greenleaf-Johnson Lumber Co., 128 N.C. 532 (1901)
June 7, 1901
·
Supreme Court of North Carolina
128 N.C. 532
FLEMING v. GREENLEAF-JOHNSON LUMBER CO.
(Filed June 7, 1901.)
EVIDENCE- — Sufficiency—Nonsuit—Negligence—Personal Injuries— Railroads — Master and Servant — Questions for Jury.
Evidence in this case on the cuestión of negligence should have been submitted to the jury.
Action by Mahala Eleming, administratrix of Daniel Fleming, against the Greenleaf-Johnson Lumber Oo., heard by Judge J. W. Bowman, at March Term, 1900, of the Superior Court of Pitt County.
Plaintiff’s evidence showed that her intestate was killed by a log rolling from _ a logging train operated by defendant, and on which deceased was going to his work. Deceased was employed by bis brother-in-law in cutting logs at a distance of three to- four miles from the logging camp, and he and other employes were accustomed to go to and from their work on the train, -though they were not employed thereon. The *533brother-in-law of deceased testified tibat be employed the latter, but that be was paid by the company, who bad the right to discharge the men, and that they were really employed by the defendant company. The accident occurred while the train was going on a down-grade, and the train was not stopped thereafter, though deceased was riding in plain view of the engine. There were no brakes on the train, except on the engine; and the car on which deceased was riding did not have standards, though the logs were held in place by four-inch shoulders, but other cars on the triain had standards. All' of plaintiff’s witnesses testified that they had not received notice not to> ride on the train, or that it was dangerous, but testified that they knew that it was dangerous to ride thereon, but preferred to take the chances rather than walk.
Erom a judgment of nonsuit, the plaintiff appealed.
Shinner & Whedbee, for the plaintiff.
J. L. Fleming, for the defendant.