Cherry v. Atlantic Coast Line Railroad, 186 N.C. 263 (1923)

Oct. 17, 1923 · Supreme Court of North Carolina

186 N.C. 263

GEORGE E. CHERRY, Jr., v. THE ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 17 October, 1923.)

1. Carriers — Railroads—Employer and Employee — Master and Servant— Negligence — Evidence—Instructions—Appeal and Error.

Where, in an action to recover damages against'a railroad company negligently inflicted upon an immature employee, the questions are presented for the determination of the jury, whether the lad had been hilled in consequence of his having negligently been sent by defendant’s agent on defendant’s business upon a dangerous errand in defendant’s freight yard among moving trains, or whether his killing was caused by a pile of cinders negligently left by defendant at the side of its track in violation of a city ordinance, it is reversible error for the trial judge in his instructions to the jury to exclude -from their consideration the question of defendant’s negligence on the second phase of the case, and confine them solely to the consideration of the evidence on the first one.

2. Appeal and Error — Instructions—Objections and Exceptions.

Exceptions to the judge’s charge taken for the first time after the trial, but set out in the appellant’s case on appeal duly tendered or served, are aptly taken under the provisions of our statute, O. S. secs. 643, 620(1). And an exception to a previous intimation of the judge made upon the trial to the effect objected to, is not required.

Appeal by plaintiff from Grady, J., at May Term, 1923, of Pitt.

Civil action to recover damages for physical injuries caused ' by alleged negligence of defendant company. There were allegations, with evidence, tending to show that on the afternoon of 6 April, 1909, plaintiff, being at the time a minor of 12 years of age, he was sent by J. R. Moore, station agent of defendant company in Greenville, N. C., to mail a letter on a passenger and mail train of defendant, on the yard at the time and just in the act of moving out of the yard; that the letter was addressed to officers of defendant company; that plaintiff went up to the moving train and threw the letter into the mail car, running along the track a short distance to do so, and as he turned away he stumbled and fell over a pile of cinders dumped near the track by defendant company or its employees, rolled under the train, and thereby received painful and serious injuries, including a broken leg, etc.; that the dumping of these cinders was on a public street or avenue of the town and was in violation of a town ordinance in existence at the time and applicable to the conditions presented.

The defendant denied that J. R. Moore was agent or that the company was in any way responsible for his acts, denied the existence of the ordinance or any negligence in reference to this question, alleged contributory negligence on part of plaintiff; and offered evidence in support of its positions.

On issues submitted, the jury rendered verdict:

“1. Was plaintiff injured by negligence of defendant, as alleged in the complaint? Answer: 'No.’”

Other issues not answered.

Judgment on verdict for defendant, and plaintiff excepted and appealed, assigning for error chiefly his Honor’s charge on the first issue: “If you find that Moore was agent, the burden being on plaintiff to so satisfy you, and the injury occurred as a result of his direction to plaintiff while he was acting in the scope of his authority as agent, you will answer the first issue 'Yes’; otherwise, you will answer it 'No.’”

F. G. James c& Son, F. G. Harding, and D. M. Clark for plaintiff.

Skinner & Whedbee for defendant.

HoKE, J.

Tbe allegations of tbe complaint and tbe evidence introduced on part of plaintiff present, and are intended to present, tbe question of defendant’s liability in two aspects:

First, by reason of an alleged negligent order on part of defendant’s agent.

Second, tbe violation of a town ordinance applicable to conditions presented and alleged to be a proximate cause of plaintiff’s injury.

Tbe two grounds of liability were distinctly recognized on a former appeal in tbis cause, wherein Associate Justice Adams, delivering tbe opinion, interpreting the complaint, said: “Tbe principal alleged acts of negligence are tbe breach of a town ordinance and tbe negligent employment by defendant of an immature and inexperienced youth to go upon a dangerous mission.” Cherry v. R. R., 185 N. C., 90-92.

Tbe ruling in respect to tbe violation of a valid town ordinance, when shown to be tbe proximate cause of plaintiff’s injury, or one of them, is in accord with our decisions on tbe subject (Stultz v. Thomas, 182 N. C., 471; Paul v. R. R., 170 N. C., 230), and there was prejudicial error, therefore, in restricting tbe issue of liability to tbe question of tbe agency of Moore and bis conduct in tbe matter. It is contended for defendant that plaintiff is precluded from tbis, bis principal objection, by reason of an entry appearing in tbe case on appeal immediately preceding bis Honor’s charge, in terms as follows:

“The court then stated that upon tbe first issue be would charge tbe jury that in order for them to answer it in tbe affirmative, they would have to find that tbe plaintiff was sent to mail tbe letter by an agent of tbe defendant while acting in tbe scope of bis authority, to which there was no exception, tbe case having been beard upon tbe theory that plaintiff was injured while acting under tbe direction of tbe defendant’s local agent. Whereupon tbe court charged tbe jury as followsBut, in our opinion, tbis position cannot be maintained.

It is tbe approved construction of our statute regulating appeals, more especially C. S., secs. 643 and 520, subsec. 2, that exceptions to tbe charge are not required to be made at or immediately after tbe trial, but appellant is entitled to have them considered if they appear for tbe first time in tbe case on appeal, where tbe same is tendered in apt time. Paul v. Burton, 180 N. C., 45, citing Bernhardt v. Brown, 118 N. C., 700; Lowe v. Elliott, 107 N. C., 718; C. S., sec. 590, subsec. 2, and other cases. And a party is not to be deprived of tbis privilege because tbe trial judge sees proper in advance to intimate what bis instructions will be, unless tbe propositions as stated are expressly agreed to by tbe parties. When they become and are made a part of tbe charge, they are open to exception, as tbe statute provides. True, tbe entry referred to closes with tbe statement that tbe case was tried on tbe theory that plaintiff was injured while acting under the direction of defendant’s local agent, but there is nothing in the record to indicate that appellant assented to any such procedure, and in the absence of such assent he was entitled to have his cause presented to the jury in every aspect that his pleadings and evidence would justify, and- a failure to do this in any substantial or essential feature of the case will constitute reversible error. S. v. Merrick, 171 N. C., 788-195.

In our opinion, there should be a new trial of the cause, and it is so ordered.

New trial.