Keller v. Champion Fiber Co., 157 N.C. 575 (1911)

Dec. 23, 1911 · Supreme Court of North Carolina

157 N.C. 575

B. B. KELLER v. THE CHAMPION FIBER COMPANY.

(Filed 23 December, 1911.)

1. Appeal and Error — Assignments of Error — Placing.

The exceptions grouped and relied on by the appellant in the Supreme Court are properly placed at the end of his ease on appeal.

2. Negligence — Contributory Negligence — Questions for Jury.

Whether the brakeman on defendant’s train was guilty of contributory negligence or whether the plaintiff was negligent in this case, are for the jury, the evidence on plaintiff’s part tending to show that the injury was inflicted by the defendant’s negligence in sending cars down a heavy grade of track without proper brakes or an engine attached.

3. Evidence — Contributory Negligence — Nonsuit.

A motion to nonsuit on the issue of contributory negligence can only be sustained when the facts necessary to constitute contributory negligence are established by the evidence of the plaintiff.

Appeal from Cline, J., at May Term, 1911, of JacxsoN.

These issues were submitted to tbe jury:

1. Was tbe plaintiff injured by tbe neg-ligence of tbe defendant, as alleged? Answer: Yes.

2. Did tbe plaintiff, by bis own negligence, contribute to bis own injury? Answer: No.

3. Wbat damage is plaintiff entitled to recover? Answer: $6,000.

From tbe judgment rendered tbe defendant appealed.

Waller B. Moore and Moore & Rollins for plaintiff.

P. H. C. Cabell, Marlin & Wright, Bourne, Parker & Morrison, Bryson & Black for defendant.

Pee Cueiam.

Tbe plaintiff moved tbe Court to dismiss tbe defendant’s appeal for tbe reason tbat tbe exceptions relied on are not grouped and numbered immediately after tbe end of tbe case on appeal, as required by Rules 19 and 21 of tbis Court (140 N. C., 660).

Tbe Court is of opinion, upon an examination of tbe record, tbat tbe assignments of error are properly placed at end of case on appeal, and tbat assignments Nos. 1 and 2, relating to tbe refusal to sustain tbe motions to nonsuit tbe plaintiff, are properly assigned and worded and tbat defendant is entitled to have tbem passed upon by tbe Court. But tbe majority of tbe Court is of opinion tbat tbe remaining assignments, all of wbicb relate to tbe charge of tbe judge and tbe refusal to give special instructions asked by defendant, are not fully or properly assigned, and come within tbe rulings of tbis Court in Thompson v. R. R., 147 N. C., 413; Lee v. Baird, 146 N. C., 361; Smith v. Manufacturing Co., 151 N. C., 260.

Taking into consideration tbe motions to nonsuit, tbe Court is of opinion tbat they were properly denied.

There is much conflicting evidence upon tbe material issues of fact, but tbe evidence of tbe plaintiff tends to establish tbat be was brakeman on defendant’s logging railroad; tbat in March, 1910, tbe defendant’s superintendent directed plaintiff to let a string of eight cars, heavily loaded, run down tbe mountain incline grade without an engine attached; tbat in obedience to orders, plaintiff did so; tbat tbe cars ran into a cow and pushed it some distance on track and were then derailed, in consequence of wbicb plaintiff was seriously injured; tbat bad tbe engine been attached it could bave controlled tbe cars and tbe derailment would not bave occurred; tbat tbe brakes were defective, out of order, and failed to stop tbe cars when applied; tbat plaintiff was furnished with only one person to assist in controlling tbe cars, and tbat was insufficient in tbe absence of tbe engine.

Upon tbe issue of contributory negligence, tbe Court is of opinion tbat motion to nonsuit can only be sustained when tbe facts necessary to constitute contributory negligence are established by tbe evidence of tbe plaintiff. In tbis case-the evidence offered by plaintiff does not of itself make out contributory negligence upon bis part. On tbe contrary, it tends strongly to rebut such defense.

Tbe judgment of tbe Superior Court is

Affirmed.