#### BINGHAM v. CAROLINA CENTRAL RAILROAD COMPANY.

(Filed June 10, 1902.)

EVIDENCE — Sufficiency—Personal Injuries — Negligencef—Damages.

Where there is not a scintilla of evidence tending to show that plaintiff was injured by negligence of defendant a demurrer to the evidence should be sustained.

ActioN by E. J. Bingham against the Carolina Central Railroad Company, heard by Judge H. B. Stcui'bucTc and a jury, at January Term, 1902, of the Superior Court of Meck-LENBURG County.

This is an action to recover damages for'personal injuries to the plaintiff, alleged to have occurred through the negligence of the defendant.

Among other allegations in the complaint are the following:

“2. That on the 14th da.y of April, 1900, and prior thereto, the plaintiff was employed by the defendant company as foreman of the Mason gang, and had charge of the road in such capacity between Pee Dee, N. C., and Eutherfordton, N. C.; that as such foreman it was his duty to> look after culverts and keep them in repair over the line of the defendant between said points, and the defendant supplied him with a lever car, together with hands to operate same, and assist in performing the work in the line of his duty.

“3. That on or about April J, 19'00, the plaintiff was directed by the defendant to go to> Eutherfordton, N. C., and take four hands with him, together with his lever car, and then start back over the road on his said lever car with the hands, towards Pee Dee, N. C., and inspect the culverts, etc., between those points; that in obedience to said order, the plaintiff and his said hands, together with his lever car, were transported on the train of the defendant to Eutherfordton, *624N. O., and then, on the said lever car, came back from Kuther-fordton, N. C., towards Pee Dee, N. 0., inspecting the road as aforesaid.

“4. That when the plaintiff, on his said lever car, on April 14, 1900, had gotten down about a mile below Lilesville on his return towards Pee Dee, he saw in front of him on the track a velocipede car, manned by one person; that the plaintiff and the hands on the said lever car kept a careful outlook in front and kept a proper distance behind said velocipede car and were running at a very slow rate of speed; that the hand in charge of the velocipede car negligently and carelessly allowed his coat or some clothing to become entangled in the gearing of the said velocipede car, which was open and exposed, so that anything near it could get into same if the party in charge of the car was not careful; that on account of the said hand allowing the said clothing to become entangled in the gearing of the said car, the same ran off the track; that the plaintiff was keeping a careful watchout, and had his lever car under control; that immediately upon the accident to the velocipede car as aforesaid, both he and his hands used every effort to stop' the lever car before it ran into the said velocipede car and avoid injury, but were unable to do so, and as they ran together the plaintiff was stricken by the said velocipede car and his ankle broken in two places.”

The plaintiff, being examined in his own behalf, testified substantially in accordance with the essential allegations of his complaint, and particularly as follows: That he was foreman of the Mason force of the defendant company; that the defendant required him to look after waterways and culverts, and repair them at the instruction of the road master; that at the time of the injury he had instruction to go over the road and inspect the culverts, and that he had a lever car and four men under his control. In answer to a question as to how the accident occurred, he said: “I got probably a short distance *625below the section master’s house; I suppose he lives about a mile from Lilesville, and I saw a man on the track with a velocipede car, and I expect he was 150 or 200 yards ahead of me. When I got in thirty feet of him I asked him who he was and where he was going. He made some remark, but I did not understand him; and I saw his coat hanging off the car and the sleeve caught in the gear of the wheel; he shook himself in some way and his coat fell and threw the velocipede from the track.”

He further testified that he was going about six miles an hour; that he had gotten within about thirty-feet of the velocipede car; that he was running slightly faster than the velocipede because he gained some on it; that when he saw the velocipede derailed he got up -and started to touch the lever on his car, and caught the lever in a manner he illustrated, and started across the platforn; that he stepped on the handle at the center of the car; that at that moment the car struck him, the velocipede car being higher than the lever car, caught his foot between the two cars and mashed it. From a judgment for the plaintiff, the defendant appealed.

Maxwell & Keerans, for the plaintiff.

Burwell, Walker & Gamier, for the defendant.

Douglas, J.

(after stating the facts). We are always loth to set aside the verdict of a jury upon the ground that there is no evidence to sustain it, especially when the case has been so clearly and fairly presented in the charge of his Honor; but under all the circumstances of this case we are forced to such a conclusion. We see no substantial evidence and by that we mean evidence beyond a mere scintilla, tending to show negligence on the part of the defendant, whose demurrer to the evidence should, therefore, have been sustained. The velocipede car does not appear to have been in a defective condition, or to *626hare been constructed differently from those in common use. Tbe only act of negligence that could possibly be imputed to tbe defendant was tbe bare fact that tbe man on tbe velocipede was riding upon bis coat. It does not seem to us tbat an act so simple, and apparently devoid of any possible elements of danger’, can be evidence of negligence. Tbe falling of tbe coat sleeve and its becoming entangled in tbe gearing seems to have been one of those accidents constantly occurring in human affairs, tbat seem so simple after they happen, and yet so utterly improbable before they happen, as to be outside tbe range of human foresight. Pure accidents can not be eliminated by law. All tbat tbe la,w has done is to' say tbat the employer shall exercise reasonable care by himself and servants, to prevent accidents, and tbe Courts can bold him responsible only when be fails to exercise such care. Tbe employer is not responsible for an accident simply because it happens, but only when be has caused it directly or indirectly by some negligent act or omission of legal duty.

This Court has said in Brown v. Railway Co., 126 N. C., 458 : “In tbe light of subsequent events we may say tbat it was unfortunate tbat tbe defendant did not notify tbe engineer of tbe presence of No. 64; but we must not forget tbe old .and homely proverb tbat ‘our hindsights' are always better than our foresights.’ ” In tbe case at bar we may repeat tbat in tbe light of subsequent events it was unfortunate tbat the man on tbe velocipede did not take better care of bis coat, and equally so tbat tbe plaintiff did not remain at a safer distance behind tbe velocipede. Either precaution would have avoided tbe accident, and yet neither' seemed necessary to tbe respective parties under tbe peculiar conditions in which they were placed.

Error.