{
  "id": 8660279,
  "name": "COOK v. SOUTHERN RAILWAY CO.",
  "name_abbreviation": "Cook v. Southern Railway Co.",
  "decision_date": "1901-05-28",
  "docket_number": "",
  "first_page": "333",
  "last_page": "336",
  "citations": [
    {
      "type": "official",
      "cite": "128 N.C. 333"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "123 N. C., 197",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8658339
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/123/0197-01"
      ]
    },
    {
      "cite": "118 N. C., 1024",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8654504
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/118/1024-01"
      ]
    },
    {
      "cite": "118 N. C., 1015",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8654497
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/118/1015-01"
      ]
    },
    {
      "cite": "117 N. C., 616",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8653725
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/117/0616-01"
      ]
    },
    {
      "cite": "36 Kan., 655",
      "category": "reporters:state",
      "reporter": "Kan.",
      "case_ids": [
        1159736
      ],
      "opinion_index": 0,
      "case_paths": [
        "/kan/36/0655-01"
      ]
    },
    {
      "cite": "66 Ill., 238",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2623635
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/ill/66/0238-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 382,
    "char_count": 6710,
    "ocr_confidence": 0.424,
    "pagerank": {
      "raw": 3.4609855690520766e-07,
      "percentile": 0.880690148344556
    },
    "sha256": "400168319eeb807dfdb56fe37ca8809ab92faba5705bfd9e18fff1b49b4b9d1d",
    "simhash": "1:da2f9bf7989dc13a",
    "word_count": 1199
  },
  "last_updated": "2023-07-14T15:44:14.013877+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "COOK v. SOUTHERN RAILWAY CO."
    ],
    "opinions": [
      {
        "text": "Clark, J.\nThis case is \u201con all fours\u201d with Pierce v. B. Go., 124 N. G., 63. It was there humanely held that a \u201ctrespasser\u2019s wrongful act in getting on a car does not justify making him get off in a manner calculated to kill or cripple him.\u201d Also, that \u201ca railroad company is responsible for injury caused by the wrongful act of its employee, while acting in the general scope of his employment, whether such act is wilful, wanton and malicious, or merely negligent.\u201d That case cites numerous authorities (pages 93 and 94), for instance, where the carrier was held liable for a servant \u201cemployed to sweep up the car\u201d kicking a boy off a moving train, the boy falling under the train and being killed; R. Co. v. Hack, 66 Ill., 238; or a brakeman doing the same, R. R. v. Kelly, 36 Kan., 655; and similar cases. The principle underlying those cases is stated to be \u201cthe proximate cause of injury is not the trespasser\u2019s wrongfully getting on the cars, but the tortious manner in which the servant makes him get off.\u201d In that ease (Pierce v. R. Co., supra) the carrier was held liable because a brakeman, either by throwing a lump of coal which frightened or struck a boy who was stealing a ride on the train, or by merely ordering the boy off, made him get off a moving train so that he was killed. In the present case the plaintiff was likewise stealing a ride. Instead of stopping the train to make him get off, or waiting until the train got to a station, it was in evidence that while the train was going four or five miles an hour the flagman, a white man, and a colored brakeman, got off the train, cursed the plaintiff and told him to get off, the brakeman threw a rock and hit the rod under the car on which the plaintiff was resting, and the flagman said \u201cgive it to him.\u201d In consequence of this assault and the threats accompanying it the plaintiff was forced to' get off while the car was moving, and in so doing caught his foot and was badly hurt.\nThe defendant offered evidence denying that the plaintiff was forced to get off by its servants. The testimony was also conflicting whether the plaintiff was injured or not. These matters were therefore properly submtted to- the jury.\nAs to the second exception, the Court told the jury that as the plaintiff was stealing a ride the defendant owed to him only ordinary care, which it defined to be \u201csuch care as a person of ordinary prudence and skill would usually exercise under tbe same or similar circumstances.\u201d That tbis small degree of care must be used towards a trespasser bas been often held. Pickett v. R. Co., 117 N. C., 616; Baker v. R. Co., 118 N. C., 1015; Ellerbee v. R. Co., 118 N. C., 1024. Such modicum of care was not exercised towards tbe plaintiff if, as the jury found, be was forced to get out from under a car running four or five miles an bour by tbe defendant\u2019s servants throwing rocks at bim and cursing bim. It can make no difference to bim whether tbe chief in charge of tbe assault wore tbe epaulet of a conductor, tbe sergeant\u2019s chevron of a flagman, or tbe corporal\u2019s stripes of a brakeman, or, indeed, if tire stone-thrower bad been a lesser servant, a private, perhaps, 'in the carrier heirarchy\nIt was within the scope of tbe authority of a flagman or brakeman to ej ect or expel tbe plaintiff. Indeed, tbe flagman was asked by defendant\u2019s counsel what be did with tramps when be found them on tbe train. To which be replied that it \u201cdepended on where be found them.\u201d But independent . of tbis, tbe flagman and brakeman were there in tbe service of tbe company, and if, as plaintiff testified, by assault and threats they made bim get off a car moving four or five miles an bour, and tbe conductor did not restrain them, tbe company is liable for tbis wrongful act of its servant, if such wrongful act caused injury to tbe plaintiff. Tbe conductor, by bis standing orders and supervision of those under bim, should have prevented tbe assault by them upon tbe plaintiff, even upon a trespasser.\nTbe plaintiff could have been legally ejected by any employee, if done with no more force than was necessary and in a proper manner. It is tbe manner in which tbe plaintiff was ejected, and not tbe rank of tbe servant ejecting bim, of which be bas cause to complain and which mal\u00edes tbe master liable. If tbe conductor had thrown the rocks at tbe plaintiff, it would in tbe same sense have been outside tbe scope of bis employment, for tbe conductor bad no more authority to assault tbe plaintiff tban tbe flagman or brakeman bad.\nTbe defendant bas misconceived tbe meaning of Pierce v. Railroad, supra, and cases therein cited. If any servant \u201cacting in tbe general scope of bis employment wrongfully assaulted tbe plaintiff, and sucb wrongful assault caused tbe injury, the defendant is liable,\u201d that is to say, if the conductor while acting as conductor, or tbe flagman or brakeman while on duty as flagman or brakeman, wrongfully assaults one on tbe train, even though sucb person be a trespasser and sucb wrongful assault is tbe proximate cause of tbe injury, tbe carrier is liable. \u201cActing within tbe general scope of bis employment\u201d means while on duty, and not that the servant was authorized to do sucb acts. Take tbe case of Strother v. Railroad, 123 N. C., 197, where tbe carrier was held liable for an insulting proposition by a conductor, but it was not in the general scope of bis employment to make sucb propositions. This is tbe reasoning and tbe reading of the authorities. If this were not so, tbe carrier would never be liable, for it can not be within tbe authority of any officer or employee to wrongfully assault any one.\nThe other exceptions do not require discussion.\nAffirmed.",
        "type": "majority",
        "author": "Clark, J."
      }
    ],
    "attorneys": [
      "Avery & Avery, and Avery & Ervin, for the plaintiff.",
      "Geo. F. Bason, and A. B. Andreius, Jr., for the defendant."
    ],
    "corrections": "",
    "head_matter": "COOK v. SOUTHERN RAILWAY CO.\n(Filed May 28, 1901.)\n1. CARRIERS \u2014 Negligence\u2014Personal Injuries' \u2014 Master and Servant \u2014Trespassers.\nA railroad company is responsible for an injury caused by the wrongful act of its employee, while acting in the general scope of his employment, whether such act is wilful, wanton and malicious, or merely negligent.\n2. CARRIERS \u2014 Negligence\u2014Personal Injuries \u2014 Master and Servant \u2014Trespassers.\nA carrier owes ordinary care to one stealing a ride on its train.\n3. EVIDENCE \u2014 Conflicting\u2014Questions for Jury \u2014 Trial.\nWhere there is a conflict of evidence as to whether a person was injured by jumping from the train, the question should be submitted to the jury.\nActioN by J. W. Cook against the Southern Railway Company, heard by Judge Thos. J. Shaw and a jury, at April Term, 1900, of the Superior Court of Bukke County. From a judgment for the plaintiff, the defendant appealed.\nAvery & Avery, and Avery & Ervin, for the plaintiff.\nGeo. F. Bason, and A. B. Andreius, Jr., for the defendant."
  },
  "file_name": "0333-01",
  "first_page_order": 369,
  "last_page_order": 372
}