Odom v. Canfield Lumber Co., 173 N.C. 134 (1917)

March 14, 1917 · Supreme Court of North Carolina
173 N.C. 134


(Filed 14 March, 1917.)

1. Master and Servant — Dangerous Employment — Negligence—Assumption of Bisks.

The fact that an employee engaged in helping to load a skidder on defendant’s train, in the course of his employment, was aware of the danger of such work does not preclude his recovery for an injury resulting from the negligent and unexpected movement of the train, without the signal or warning customarily given under the circumstances.The instructions of this case upon the questions of negligence and proximate cause approved. Pritchard v. 'R. R., 157 N. C., 102; Mule Oo. v. R. R. 160 N. C., 221.

*1352. Damages — Evidence—Mortuary Tables.

In. an action to recover damages for a personal injury, the expectation of life tables, Revisal, 1626, are, not conclusive, hut merely evidential on the issue as to damages.

' 3. Master and Servant — Negligence—Scope of Employment — Orders—Yol-unteer.

The plaintiff, an employee of the defendant, while engaged, in the course of his employment, in loading a skidder upon a logging train, attempted to get a chisel for his superior, under his order, and was injured by the negligent movement of the train without signal or warning. Held, he was not a volunteer in so acting; and, if otherwise, the defendant had no right to negligently injure him.

4. Appeal and Error — Newly Discovered Evidence — Opinion—Discussion.

Upon motion in the 'Supreme Court to set aside the judgment appealed from for newly discovered evidence, the Court will grant or refuse the motion without discussion. Johnson v. B. B., 163 N. C., 453, cited as decisive of this appeal.

Allek, J., dissenting; Walker, J., concurring in dissent.

Appeal by defendant from Devin, J., at December Term, 1916, of ONSLOW.

Duffy & Day and G. V. Gowper for plaintiff.

Frank Thompson, E. M. Koonce, Langston, Allen & Taylor, and Charles L. Abernethy for defendant.

OlaRK, 0. J.

Tbe plaintiff was an employee of tbe defendant, cutting wood, rafting logs, driving tbe loading borse,. and working on tbe railroad. It was tbe custom, known to tbe-company and employees, tbat tbe men rode to and from tbeir work on defendant’s log train, and a whistle always sounded a short time before tbe engine started to give them notice tbat tbe engine was ready to move.

On this occasion tbe skidder was being jacked up on tbe car by tbe usual method of jacking up, letting tbe car go under it and then lowering tbe skidder down upon tbe car. Tbe plaintiff was assisting in this work when Fred Garner, in charge of tbe skidder, told him to jump up on tbe engine and band him down a cold chisel, and as he turned around to get off, tbe train started and made a bitch, and as plaintiff grasped tbe bracket block it gave way, throwing tbe plaintiff off, and tbe engine ran over bis left foot. Joe Lockie testified tbat be was foreman, but Garner was in charge of tbe skidder; tbat be “was in charge of tbe whole business, but Garner was particularly in charge of tbe skidder.” Tbe plaintiff testified tbat no whistle was sounded or other warning given after be was sent upon tbe engine to get tbe chisel. He also said: “Tbe morning I was hurt I did not have tbat warning of *136the train starting. It bad never failed to give warning. Tbat was tbe first time it failed to blow at tbat time, tbat I know of.” He was corroborated by tbe witness Ed. Jones, and bis father and mother, Mr. and Mrs. Odom, testified tbat foreman Lockie admitted to them soon after tbe injury tbat tbe whistle did not blow. Lockie himself says tbat it was current among tbe employees at tbe time tbat if tbe whistle bad been blown tbe plaintiff would not have been hurt.

Tbe defendant demurred in this Court for tbe first time tbat tbe complaint did not state a cause of action, but we cannot sustain tbe demurrer. Tbe exceptions to tbe evidence and tbe charge have been considered, but we do not think they can be sustained, or tbat they need discussion. Tbe case was almost entirely one of fact, and tbe jury have found tbe facts against tbe defendant. Tbe definitions of negligence and of proximate cause were given practically as set out in Pritchett v. R. R., 157 N. C., 102; Mule Co. v. R. R., 160 N. C., 221. The charge as to proximate cause is in accordance with what was said in Ward v. R. R., 161 N. C., 184; Alexander v. Statesville, 165 N. C., 532. Tbe defendant contends "that such charge conflicts with Drum v. Miller, 135 N. C., 204. But we do not see any conflict between these cases.

Exceptions 3, 4, 6, 7, 8, and 9 require no discussion. As to tbe fifth exception, tbe fact tbat tbe plaintiff was an employee and knew tbe dangers incident to operating tbe skidder did not relieve tbe defendant of giving usual notice by blowing tbe whistle. Noble v. Lumber Co., 151 N. C., 78, and cases there cited. Exceptions 10 and 11 were to tbe statement of plaintiff’s contentions, and tbe defendant made no exception at tbe time. Tbe court told tbe jury tbat tbe mortuary tables in tbe Revisal were not conclusive, but merely evidential. Sledge v. Lumber Co., 140 N. C., 461.

Exception 12 cannot be sustained, for there is no evidence tbat tbe plaintiff volunteered to band tbe chisel to Garner. Tbe plaintiff testified tbat be was directed by Garner to jump up on tbe engine and get tbe chisel, while tbe defendant’s contention was tbat there was no chisel, and tbat plaintiff was not sent for it. Moreover, if be bad volunteered to help Garner, being a workman under him, this would not have given defendant tbe right to negligently injure him.

There was also a motion in this Court to set aside tbe judgment and verdict on the ground of newly discovered testimony. This Court, in Brown v. Mitchell, 102 N. C., 374, stated: “This Court will, as a rule, in future grant or refuse such motions without discussing tbe facts embodied in tbe petitions or affidavits, as we cannot see tbat any good will be accomplished by contributing another to tbe volumes tbat have been written upon tbe exercise of legal discretion” in such cases. This has been cited and approved in many cases, especially in Herndon v. R. R., 121 N. C., 499, where tbe Court prescribed tbe practice in such cases *137and beld tbat we would not bear oral argument on sucb motions. Tbis bas been followed ever since, in Crenshaw v. R. R., 140 N. C., 193; Murdock v. R. R., 159 N. C., 132, and other cases. It may be well, however, to call attention to the summary of the rules as to the grounds of a valid motion as given by Mr. Justice Walker in Johnson v. R. R., 163 N. C., 453. It does not appear in tbis case tbat the testimony of two witnesses which is now chiefly desired could not have been bad if subpoenaed promptly, for they were both in the employ of the defendant company, and, moreover, their testimony would only have been cumulative.

No error.

AlleN, J.,

dissenting: I am of opinion there ought to be a new trial on the issue of damages on account of the failure of his honor to restrict the recovery of prospective damages to their present value.

He nowhere told the jury that this was the rule for their guidance, and does not refer to present value, except in one place, when stating the contention of a party, and in this I think there is error. Fry v. R. R., 159 N. C., 362.

Walker, J., concurs in this opinion.