Collins v. Hyde County Land & Lumber Co., 195 N.C. 849 (1928)

Feb. 22, 1928 · Supreme Court of North Carolina

195 N.C. 849

JONAH COLLINS, Administrator of John Thomas Collins, v. HYDE COUNTY LAND AND LUMBER COMPANY.

(Filed 22 February, 1928.)

1. Trial — Nonsuit—Nonsuit Should Not Be Granted on Conflicting Evidence.

Conflicting evidence on the issues takes the case to the jury and overrules defendant’s motion as of nonsuit.

2. Negligence — Acts or Omissions Constituting Negligence — Particular Injury Need Not Be Foreseen.

It is not necessary that the particular injury should have- been foreseen to recover damages for a negligent killing of plaintiff’s intestate.

Appeal by defendant from Midyette, J., at November Term, 1927, of Pasquotank.

No error.

Ehringhaus & Email for plaintiff.

8. 8. Mann and. McMullan & LeRoy for defendant.

Pee CueiaM.

Tbis is an action to recover damages for negligently cansing tbe death of tbe plaintiff’s intestate. Tbe defendant is engaged in tbe lumber business and maintains a railroad, logging road, cars, a skidding machine and other machinery used in cutting, skidding, loading, transporting, and unloading logs. On 1 August, 1923, tbe plaintiff’s intestate as an employee of tbe defendant was engaged in tbe operation of a skidder hoisting engine. There is evidence tending to show that be was one of tbe skidder crew, which was in charge of Herbert Brewer, tbe defendant’s foreman, and that Brewer directed tbe operation of tbe machine. For tbe purpose of bringing some cars from tbe main line into tbe siding leading to tbe skidder, tbe crew, under tbe direction of tbe foreman, ran a line or wire rope from tbe skidder to tbe cars, and in .some way tbe rope “caught a piece of wood and whirled it so that it struck tbe plaintiff’s intestate” and threw him on tbe siding under the moving cars. He died from tbe injury thus inflicted. Tbe usual issues were submitted to tbe jury'and answered in favor of tbe plaintiff, and from tbe judgment awarded thereon tbe defendant appealed, assigning error.

The first three assignments are addressed to the court’s refusal to dismiss the action as in case of nonsuit and peremptorily to instruct the jury to answer the issue as to negligence in the negative and the issue as to contributory negligence in the affirmative. There is evidence of negligence on the part both of the intestate and of the defendant, and therefore in the denial of the motion and of the prayers for instructions there was no error. The remaining assignments are based on exceptions to instructions given the jury, but a careful examination of these instructions reveals no reversible error. A review of the authorities is unnecessary. The instruction that to constitute negligence it is not required that the employer foresee the injury which actually occurs is supported by a number of decisions extending from Drum v. Miller, 135 N. C., 204, to Hall v. Rinehart, 192 N. C., 706. We find

No error.