Buckner v. Madison County Railroad, 164 N.C. 201 (1913)

Dec. 10, 1913 · Supreme Court of North Carolina

164 N.C. 201

JOHN BUCKNER v. MADISON COUNTY RAILROAD COMPANY.

(Filed 10 December, 1913.)

1. Trials — Notes of Evidence — Judge’s Notes.

It is not required tbat tbe presiding judge shall take down tbe evidence upon tbe trial of an action, and tbougb Revisal, 554 (2), does require tbat so much.of tbe evidence as may be material to an exception taken shall be reduced to writing and entered by tbe judge upon tbe minutes of tbe court and filed with tbe clerk, tbe judge may require a stenographer or some one else to do so; and where tbe attorney for tbe appellant has been previously informed and given ample time on tbe trial to do this, and bis notes with ^exceptions bave been fully adopted in tbe case on appeal, be cannot be beard to complain either of its insufficiency' or tbe failure of tbe judge to take tbe notes himself.

2. Negligence — Trials—Evidence—Measure of Damages.

In an action to recover damages for a personal injury, it is competent for tbe plaintiff to testify, tbe regular price for tbe work be was engaged in which tbe defendant promised to pay bim, as an element of damages involving tbe loss of compensation.

3. Negligence — Inexperienced Employees — Trials—Evidence.

Where damages for a personal injury is alleged to bave been negligently inflicted by a railroad company, tbe negligence alleged being tbat of a fellow-servant, it is competent for tbe plaintiff to testify to a conversation bad by bim and tbe defendant’s foreman, tending to show tbat tbe fellow-servant was inexperienced in tbe work; and while this testimony was beld unnecessary in this case, its admission is beld as immaterial.

4. Trials — Negligence—Evidence—Nonsuit—Questions for Jury.

In an action to'recover damages for a personal injury alleged to have been negligently inflicted, there was evidence that while the plaintiff was engaged in loading logs for the defendant company, operating a logging road,,the defendant’s log-loader, without any signal or warning, suddenly and unexpectedly jerked the log at which plaintiff was at work, and thus caused the injury complained of by throwing it upon him: Held, evidence sufficient to take the case to the jury, and a motion as of non-suit was properly denied.

5. Appeal and Error — Brief—Exceptions Abandoned — Trials—Evidence — Negligence.

Exceptions not noted in the brief are taken as abandoned, but held, in this case, the refusal to give an instruction excepted to was not error, as it barred the -right of recovery for an injury inflicted by the unexpected movement of a log resulting from a negligent act of the defendant.

6. Fellow-servant — Logging Roads — Interpretation of Statutes.

Logging roads are railroads within the meaning of the fellow-servant act, Revisal, sec. 2646, and the provisions of the act apply to an injury negligently inflicted by a fellow-servant in any department of a railroad being operated.

Appeal by defendant from Garter, J., at September Term, 1913, of MadisoN. *

Martin, Rollins & Wright and J. D. Murphey for plaintiff.

Merrich & Barnard and Guy V. Roberts for defendant.

Clark, C. J.

This is an action for personal injuries. The court suggested that counsel should arrange to have a stenographer to take notes on the trial. They failed to do so, and the court finds as a fact that “counsel were notified at the beginning of the trial that they would be given ample time to record all exceptions, and they were given such ample time, and in this ease on appeal the appellant is allowed every exception claimed by it in its statement of the case on appeal.”

The defendant excepts because the judge did not take notes of the evidence and did not himself make a record of the exceptions taken by the defendant on the trial. The statute does not require that the judge shall take down the evidence. It is true that Eevisal, 554, subsee. (2), does provide: “If an exception be taken on the trial, it must be reduced to writing at the time, with so much of the evidence or subject-matter as may be material to the exception taken; the same shall be entered on the judge’s minutes and be filed with the clerk as a part of the case upon appeal.” This provision does not require that the judge shall reduce the exceptions to writing himself, but merely that they shall be reduced to writing and entered on his minutes. It is competent for the judge to require the stenographer, or some one else for him, to take down the exceptions and evidence pertinent thereto. It was, therefore, competent for him to authorize the defendant’s counsel themselves to take down their own exceptions. He finds as a fact that he promised 'them ample time to do so, and that they had it.- The defendant certainly cannot except to this privilege. The other side, might possibly feel aggrieved. Even if it was error, the defendant could not complain, for it could not be and was not prejudicial error to that side. It is found that the “appellant is allowed every exception claimed by it in its statement of case on appeal.” It is not alleged that there were any other exception of which the appellant was deprived from lack of time, and the judge finds the contrary to be the fact. His statement is necessarily conclusive of what occurred at the trial. Cameron v. Power Co., 137 N. C., 100, and cases there cited.

Exception 2 is that the plaintiff was allowed to testify what was the “regular price” for the work which he was doing, stating that he was promised the regular price. This was competent, and if incorrect as to amount, the defendant could have shown it. Exception 3 is to the admission of a conversation between the plaintiff and the defendant’s foreman and vice-principal prior to the injury. This tended to show that Thomas, the log-loader, was an inexperienced man. The negligence complained of in this case is the act of the log-loader, who was running the engine, in suddenly and unexpectedly and without warning jerking a log into which the plaintiff had hooked the tongs, without giving the plaintiff an opportunity to get out of the way." Although it was not necessary to put in this testimony, at most’ it was immaterial.

Tbe motion for a nonsuit was properly refused. Tbe allegation in tbe amended complaint is: “Tbe defendant, Madison County Railroad Company, without any signal, suddenly, and without any notice to tbe plaintiff, moved tbe log to which tbe plaintiff bad attached the tong books, and carelessly and negligently threw of caused said log to be thrown, upon tbe plaintiff, seriously and permanently injuring him.” • Tbe testimony of tbe plaintiff upon this point was: “After I bad booked tbe tongs to tbe log, Marion Thomas, tbe log-loader, without any signal or warning, suddenly and unexpectedly jerked tbe log with tbe crane and log-loader and threw tbe same over on me and.injured me before I bad time to get out of tbe way.”

Exception 5 was for refusal to charge that if tbe jury believed tbe evidence, to find tbe issue of negligence “No.”

Exception 6 is for tbe refusal of tbe court to give tbe following instruction: “If tbe jury shall find from tbe evidence that at tbe time Thomas started to pull on tbe log be did not know, and bad no reasonable ground to believe, that tbe log was caught of that it would follow other than tbe usual direction, tbe act of Thomas in pulling on tbe log would not be negligent, and tbe jury would answer tbe first issue No.’ ”

This exception and tbe next are abandoned because not set out in tbe defendant’s brief. Rule 34 provides: “Exceptions in tbe record not set out in appellant’s brief will be taken as abandoned by him.” But if it bad been insisted on in tbe brief, it could not be sustained, for though Thomas did not know, or bad no reason to believe, that tbe log was caught or would follow other than tbe usual direction,- it was, notwithstanding, negligence, if, as charged in tbe complaint and shown in tbe evidence, be jerked tbe log, without warning and unexpectedly, without giving tbe plaintiff an opportunity to gain a place of safety, as be should have done, whereby be was injured.

It was held in Hemphill v. Lumber Co., 141 N. C., 487, that lumber roads are “railroads” within tbe meaning of Revisal, 2646, and this ruling has been followed ever since. In Nicholson v. R. R., 138 N. C., 516, and in many other cases it has been beld tbat tbis section applies to an injury suffered by an employee in any department .of work of a railroad wbicb is being operated.

No error.