{ "id": 11252513, "name": "W. R. HORTON v. SEABOARD AIR LINE RAILWAY", "name_abbreviation": "Horton v. Seaboard Air Line Railway", "decision_date": "1907-10-10", "docket_number": "", "first_page": "132", "last_page": "139", "citations": [ { "type": "official", "cite": "145 N.C. 132" } ], "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": "135 N. C., 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659800 ], "opinion_index": 0, "case_paths": [ "/nc/135/0474-01" ] }, { "cite": "88 N. Y., 645", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 550729, 550660, 550677 ], "opinion_index": 0, "case_paths": [ "/ny/88/0645-01", "/ny/88/0645-02", "/ny/88/0645-03" ] }, { "cite": "88 Md., 98", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2175223 ], "opinion_index": 0, "case_paths": [ "/md/88/0098-01" ] }, { "cite": "141 N. C., 530", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11253610 ], "opinion_index": 0, "case_paths": [ "/nc/141/0530-01" ] }, { "cite": "132 N. C., 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659818 ], "opinion_index": 0, "case_paths": [ "/nc/132/0428-01" ] }, { "cite": "128 N. C., 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660610 ], "opinion_index": 0, "case_paths": [ "/nc/128/0387-01" ] } ], "analysis": { "cardinality": 617, "char_count": 15121, "ocr_confidence": 0.452, "pagerank": { "raw": 2.3728075846420702e-07, "percentile": 0.795889837592848 }, "sha256": "1379ac74f4e1321d5b4d219eb6a0bbeefc906a85089f92c8fe4a48a298533725", "simhash": "1:f092ed28a80b662b", "word_count": 2661 }, "last_updated": "2023-07-14T16:50:30.483289+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. R. HORTON v. SEABOARD AIR LINE RAILWAY." ], "opinions": [ { "text": "CONNOR, J.,\nafter stating the case: Defendant, in the well-prepared brief and the oral argument of counsel, alleges as the first ground for a reversal of the judgment the refusal of 'his Honor to direct judgment of nonsuit. This contention involves the proposition that there was no evidence' of negligence fit for the consideration of the jury. It is conceded that plaintiff was in the line of his duty, acting by direction of an employee of the company having the power to give the order, and that Seagrave, whose alleged negligence in dropping the rod from his hand, was a fellow-servant, for whose negligence defendant is liable under the fellow-servant law. Rev., sec. 2646. Is there any evidence that Seagrave \u201cdropped his end of the rod\u201d ? The plaintiff swears to it, and he is not contradicted. Seagrave is not introduced by either party. It is true that plaintiff also used the expression, \u201cthe rod slipped from his hand.\u201d It ivas for the jury to say which was the correct statement. If he dropped the end of the rod while plaintiff\u2019s arm was in a position to be injured thereby, it certainly constituted some evidence from which the jury may have inferred negligence. It was his duty to hold the rod \u2014 to use such physical power as was at his command to prevent it from dropping. The dropping of the rod was'not conclusive, nor, as his Honor charged the jury, did it raise a presumption of negligence, but it was certainly some evidence thereof. In this connection his Honor said to the jury: \u201cIn determining the question as to whether the agent of the defendant was or was not negligent in dropping or letting the rod slip, if you find he dropped or let it slip, the question of whether he acted as a reasonably prudent man would have acted under similar circumstances must be considered, .the burden being upon tlie plaintiff to satisfy you by greater weight of evidence that the agent did not exercise proper care. If you are satisfied by the greater weight of evidence that the agent did not exercise proper care, that he was negligent, and that this negligence was the proximate cause of the plaintiff\u2019s injury, then, as I have explained, it is your duty to answer the first issue \u2018Yes.\u2019 If you are not satisfied by the greater weight of evidence that he was negligent, or that it was the proximate cause of plaintiff\u2019s injuries, you will answer that issue \u2018No.\u2019 \u201d\nHis Honor carefully explained to the jury that the burden of proof was upon the plaintiff, not only to show that Sea-grave let \u2014 that is, permitted \u2014 the rod to slip or drop from his hand, but that he failed to exercise the care of a prudent man to prevent its doing so. There is no suggestion that the rod slipped or dropped because of its weight, or that Sea-grave did not have physical strength sufficient to hold it\u2014 that it was too heavy for one man to hold. It is true that plaintiff says: \u201cI should say that it weighed 400 or 500 pounds; I never weighed one.\u201d Defendant\u2019s witnesses say that it did not weigh to exceed 75 pounds. It was the duty of defendant, when, by its agent, it ordered plaintiff to fix the engine, to furnish a competent man to assist him, who would exercise reasonable \u2014 that is, ordinary \u2014 care in holding the rod. If it failed to do so,, there was negligence; and if such negligence- was the proximate cause of the injury, it was actionable. We have examined the cases relied upon by defendant: Bryans case, 128 N. C., 387, and Alexanders case, 132 N. C., 428. We do not think them conclusive of the question presented by this record. Certainly, if one whose duty it is to hold up an iron rod while another person is in a position with reference to it that dropping it will injure him, the duty is imposed upon the person holding to use ordinary care to prevent it from dropping. In the absence of any explanation why he \u201cdropped\u201d it, is it not a reasonable inference that he failed to exerci.se ordinary care ? The principle governing cases of this kind has been so fully and so recently discussed by us that we deem it only necessary to cite the last one, in which Mr. Justice Holce reviews all of them \u2014 Fitzgerald v. Railroad, 141 N. C., 530. AVe are all of the opinion that .his Honor correctly denied the motion for judgment of nonsuit or to direct a verdict upon the first issue. There is no exception to the charge, as given, argued in the brief, and we find no error therein. Defendant, however, earnestly contends that his Honor committed prejudicial error in refusing to give the last part of the instruction asked. \"While it is settled by a number of cases decided by this Court that a party is entitled to formulate a correct proposition of law applicable to phases of the testimony, and have it submitted to the jury, it is equally well settled that, if the Court, either in its general instruction or in response to special prayers, has stated the same proposition in a form equally favorable to the contention of appellant, the failure to give such prayer is not reversible error. His Honor had clearly instructed the jury in respect to the law applicable to the testimony. He had, also, in response to defendant\u2019s prayer for special instruction, told the jury that the mere fact that plaintiff was injured while in the employment of defendant was \u201cno evidence of negligence\u201d; that the \u201cmere fact that Joseph Seagrave dropped the rod is no presumption of negligence,\u201d and, again, that \u201cthe mere fact and proof of injury, unsupported by other evidence of negligence or any attending circumstances whereby the jury can reasonably infer negligence, is not a presumption of negligence.\u201d We are unable to see how much more strongly his Honor could have put defendant\u2019s contention, unless he had instructed them that there was no evidence of negligence. Having submitted the question of negligence to the jury upon the theory that if they found that Seagrave dropped the rod, we do not perceive how he could have said to them that if they found no attending circumstances they must find that there was no negligence. Plaintiff\u2019s contention was that, in the absence of \u201cattending circumstances\u201d explaining why he dropped the rod, the jury should infer that he did so negligently \u2014 -that he was not exercising due care. To have given the instruction asked would have been to reason in a circle and withdraw from the jury, indirectly, the very question which he had submitted to them. It was the unexplained dropping the rod which plaintiff relied upon to maintain his contention. It will be further noted that the instruction assumes that the evidence showed an \u201cunexplained falling of the rod.\u201d This assumption has no support. All of the evidence is that Seagrave \u201cdropped the rod,\u201d or that it \u201cslipped\u201d from his hand. It has been frequently held that, where the duty is imposed of securely fastening an object, the falling of which endangers life or limb of one to whom the person owes the duty of fastening the object, the falling of it unexplained justifies the inference that it was not, securely fastened. Windleman v. Calloday, 88 Md., 98; Gulock v. Eldermeyer, 88 N. Y., 645; Kearney v. Railroad, 5 L. R. (Q. B.), 411, and other cases cited in Womble v. Grocery Co., 135 N. C., 474. Here Seagrave was an intelligent human being, knew the conditions and the duty which he owed plaintiff, and almost certain injury to him if he dropped the 'rod. If there were \u201cattending circumstances\u201d explaining why he did so, as if his hands were benumbed by 'cold, or he was taken suddenly sick, or for any reason he was suddenly disabled, it was open to defendant to show such conditions. The instruction asked is not perfectly clear, but, as we interpret the language, his Honor correctly declined to give it. The case has been, so far as an examination of the record discloses, fairly tried, and every phase of the testimony submitted to the jury, with correct, instructions in respect to the law.\nThe judgment must be\nAffirmed.", "type": "majority", "author": "CONNOR, J.," } ], "attorneys": [ "T. M. Pittman and J. G. Kitirell for plaintiff.", "Day, Bell & Allen for defendant." ], "corrections": "", "head_matter": "W. R. HORTON v. SEABOARD AIR LINE RAILWAY.\n(Filed 10 October, 1907).\n1. Railroads \u2014 Negligence\u2014Duty of Employer \u2014 Competent Assistance \u2014 Ordinary Care.\nIt was tbe duty of defendant railroad company to furnish the plaintiff, its engineer, a competent person to assist him in fixing his locomotive, the engineer acting under the instruction of the defendant, and such assistance being necessary from the character of the work being done; and the defendant is liable in damages when the assistant fails to exercise reasonable or ordinary care to prevent an injury, such failure being the proximate cause of the injury.\n2. Same \u2014 Instructions.\nWhile a party to the litigation is entitled to have correct propositions of law applicable to phases of the testimony given as instructions to the jury, when aptly tendered, it is- not reversible error when\" the court, in its general instructions or in response to special prayers, has stated the proposition in a form equally as favorable to the contention of the appellant.\n3. Same \u2014 Fellow-servants\u2014Evidence\u2014Burden of Proof.\nWhen it appears from the evidence that plaintiff was injured, while in the course of his employment, by reason of the slipping or dropping of an end of a rod by his fellow-servant, upon the other end of which he was at work, such is sufficient evidence to be considered by the jury upon the question of negligence, and, if unexplained, justifies the inference of negligence or the failure to exercise due care, when the consequences of such act could readily have been perceived. Revisal, sec. 2640.\nCivil acttoN, tried before Biggs, J., and a jury, at February Term, 1907, of the Superior Court of VaNCe County.\nAction for personal injury sustained by plaintiff while in the employment of defendant.\nPlaintiff testified that he was, at the time of, and had been for many years before the injury complained of, in the employment of defendant as yard locomotive engineer at Henderson, N. C.; that on 10 December, 1903, Mr. Clark, the traveling engineer of defendant, who had charge of its engines and the duty of looking after them, came to Henderson and told him that the front end of the engine was in bad condition and must be fixed at once. Plaintiff told Clark that the brass was worn out, and that he could not fix it. Clark said that it must be done \u2014 that plaintiff must fix it at once. Plaintiff told him that he would do the best he could with it; that he had no tools. He said that it must be done that night. It snowed and the wind blew \u201cas hard as you ever saw it.\u201d When plaintiff quit work he backed down to a yard and bought some wood. Seagrave was fireman on the engine. Plaintiff says: \u201cWe were working on the main rod. Sea-grave had never seen a rod taken down before, and didn\u2019t look like he knew anything about it. I was trying to enter the rod into the back end of the strap, when his end slipped out of his hand and jerked my hand down on the rod. He dropped his end of the rod. I had hold of the other end of the rod; it mashed my arm. It was eight or ten feet long. It was about half-past ten or eleven o\u2019clock at night when I got through fixing the engine.\u201d He testified that certain tools were necessary to do the work; that he purchased a file himself, and that it was necessary to have one man to help him. The foregoing is all of the evidence in regard to the time, place, manner, etc., of the injury. There was evidence in regard to the condition of the engine and of the work to be done on it, the character and extent of the injury, none of which is necessary to set out in detail for the purpose of passing upon the exceptions referred to and relied upon in the defendant\u2019s brief. Defendant moved for judgment of non-suit. Motion denied. Defendant excepted. The usual issues were submitted to the jury.\nHis Honor, after stating the contentions of the parties, among other instructions -not excepted to, charged the jury: \u201cAs between master and servant, the mere fact of the servant heing injured while in his employ is not prima facie evidence of negligence, and the burden is upon the servant to prove the injury was caused by the master, and he must show that the injury was the result of his negligence. It is not sufficient to show that he was injured; he must go further and show the cause of the injury, and that it was the result of negligence of some agent of the master, and that it was this negligence that was the proximate cause of the injury. So much for the questions of law which I shall give you to guide you and control your actions in determining the first issue. Now, applying these rules to the facts in the case, you must determine whether Mr. Horton was injured by the negligence of the defendant\u2019s fireman, Mr. Seagrave, and whether that negligence was the cause of the injury, if you find that Mr. Horton sustained an injury. Did the defendant railroad, through its agent, fail to exercise proper care, as I have explained to you, in handling this rod, and was such negligence the proximate cause of the plaintiff\u2019s injury, if you find he was injured, as claimed by him, on or about 10 December, 1903 ? That is the question which you must determine with reference to the first issue.\u201d Iiis Honor explained tbe evidence and directed tbe attention of tbe'jury to tbe several issues and phases of the case. To this there is no exception.\nDefendant requested bis Honor to give the following special instructions:\n\u201cAs between master and servant, the mere fact that tbe servant is injured while in his employ is not prima facie negligence and is no evidence of negligence.\u201d This prayer was given, tbe Court adding: \u201cBut tbe burden of proof is upon the-servant to prove that* bis injury is caused by the negligence of tbe master.\u201d\n\u201cUpon tbe whole evidence, if tbe jury believe it, they will answer the first issue 'No.\u2019 \u201d Kefused, and tbe defendant excepts.\n\u201cThe mere fact that plaintiff\u2019s arm was injured while in the employment of tbe defendant is no presumption of negligence.\u201d Tbe Court gave this instruction.\n\u201cTbe mere fact that Joseph Seagrave dropped tbe rod is no presumption of negligence.\u201d Tbe Court gave this instruction.\n\u201cThe general rule is, that tbe mere fact and proof of injury, unsupported by other evidence of negligence or any attending circumstances whereby tbe jury can reasonably infer negligence, is not a presumption of negligence; and if tbe jury should find from tbe facts in this case there are no attending circumstances from which they can reasonably infer negligence, other than tbe bare fact of tbe unexplained falling of the rod upon tbe plaintiff\u2019s arm, they will answer tbe first issue 'No.\u2019 \u201d His Honor gave the first part of tbe instruction, but omitted to give tbe latter part, to-wit, \u201cand if tbe jury should find from tbe facts in this case that there are no attending circunrstances from which they can reasonably infer negligence, other than tbe bare fact of tbe unexplained falling of tbe rod upon tbe plaintiff\u2019s arm, they will answer the first issue 'No.\u2019 \u201d Defendant excepted.\nThere was judgment upon the verdict. Defendant appealed.\nT. M. Pittman and J. G. Kitirell for plaintiff.\nDay, Bell & Allen for defendant." }, "file_name": "0132-01", "first_page_order": 172, "last_page_order": 179 }