{ "id": 8655130, "name": "WILLIAM BATTLE v. CLEAVE & ROGERS, Receivers of the CHAMPION LUMBER COMPANY", "name_abbreviation": "Battle v. Cleave", "decision_date": "1919-12-20", "docket_number": "", "first_page": "112", "last_page": "115", "citations": [ { "type": "official", "cite": "179 N.C. 112" } ], "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": "131 N. C., 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659145 ], "opinion_index": 0, "case_paths": [ "/nc/131/0103-01" ] }, { "cite": "118 N. C., 1098", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654623 ], "opinion_index": 0, "case_paths": [ "/nc/118/1098-01" ] }, { "cite": "150 N. C., 4", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269583 ], "opinion_index": 0, "case_paths": [ "/nc/150/0004-01" ] }, { "cite": "153 N. C., 116", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271556 ], "opinion_index": 0, "case_paths": [ "/nc/153/0116-01" ] }, { "cite": "167 N. C., 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272071 ], "opinion_index": 0, "case_paths": [ "/nc/167/0232-01" ] }, { "cite": "144 N. C., 577", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "174 N. C., 742", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11255461 ], "opinion_index": 0, "case_paths": [ "/nc/174/0742-01" ] }, { "cite": "176 N. C., 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656978 ], "opinion_index": 0, "case_paths": [ "/nc/176/0558-01" ] } ], "analysis": { "cardinality": 400, "char_count": 7342, "ocr_confidence": 0.481, "pagerank": { "raw": 2.0699020574692655e-07, "percentile": 0.757613667823877 }, "sha256": "5bac1d9f3b663151e8e80b44cdce93aa48f51f17142c99bbfa6b06b0041034d0", "simhash": "1:f6aea563895af5dc", "word_count": 1256 }, "last_updated": "2023-07-14T16:12:15.491038+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WILLIAM BATTLE v. CLEAVE & ROGERS, Receivers of the CHAMPION LUMBER COMPANY." ], "opinions": [ { "text": "Hoke, J.\nThe facts in evidence appearing from plaintiff\u2019s own testimony, the only witness examined, tend to show that in June, 1918, in the employment of defendants as log scaler, he was out at one of the camps, several miles from the plant or central station at Crestmont; that the superintendent of the logging force, a Mr. Heatherby, had come out to the camp over the company\u2019s road on a lever or push car, the car having just been repaired, and, when they were ready, the two put the ear back on the track and started on their return to Crestmont. Soon after starting the two front wheels of the car \u201cdropped from the track.\u201d Heatherby said, in explanation, that \u201cthey had tightened both front wheels on the axle and one of them should be loose. The car then ran on without incident till they were going over a trestle near Crestmont, at 4 or 5 miles an hour, when it again left the track, throwing plaintiff to the ground, a fall of 8 to 10 feet, and the car fell on him, causing painful, serious, and protracted injuries. Heatherby, who was not hurt, lifted the car off plaintiff, and, in doing so, said: \u201cThey had not adjusted the car properly, and it would have to go back to the shop.\u201d\nOn this, the principle evidence relevant to the inquiry, the jury have established liability of defendants, and, on careful consideration, we find no reason for disturbing the results of the trial.\nIt is chiefly objected for defendants that the trial court should have allowed their motion to nonsuit, but the exception is without merit.\nUnder our decisions bearing on the question, the derailment of the car raises a presumption of negligence sufficient of itself to carry the case to the jury on the issue as to defendant\u2019s breach of duty. Wallace v. Power Co., 176 N. C., 558; Mumpower v. R. R., 174 N. C., 742; Overcash v. R. R., 144 N. C., 577. And, in addition, there are the direct statements of the superintendent, made at the time of the occurrence, tending to show negligence in the recent repairs of the car made at the company shops.\nIt is earnestly insisted for defendant, however, that judgment of non-suit should have been entered by reason of contributory negligence on the part of the plaintiff. Such a judgment has been given in rare instances on the grounds suggested, and where, from the proof offered in support of plaintiff\u2019s cause of action, it clearly appears that his own negligence has been the proximate cause of the injury or one of them. Dunnevant v. R. R., 167 N. C., 232; Mitchell v. R. R., 153 N. C., 116; Strickland v. R. R., 150 N. C., 4.\nThe burden of showing contributory negligence, however, is on the defendant, and the motion for nonsuit may never be allowed on such an issue where the controlling and pertinent facts are in dispute, nor where opposing inferences are permissible from plaintiff\u2019s proof, nor where it is necessary in support of the motion to rely, in whole or in part, on evidence offered for the defense. Russel v. R. R., 118 N. C., 1098; House v. R. R., 131 N. C., 103.\nIn the present instance, while the plaintiff\u2019s testimony shows that the two front wheels had run off the track as they started back to the plant,' and the superintendent had said they had tightened both wheels when one should have been loose, it also shows that the car had just been repaired at the shops; that the superintendent had himself just brought it out from the plant without mishap; that it was put back on the track and was being operated under his immediate supervision, and, under all the facts and attendant circumstances, there was nothing to show that the defect suggested by the superintendent gave import of such menace as to constitute contributory negligence in the further use of the car, and assuredly it did not follow as a conclusion of law from plaintiff\u2019s proof.\nIt is further objected that his Honor charged the jury \u201cthat there was no evidence of contributory negligence on the part of plaintiff as alleged in the answer.\u201d The only contributory negligence stated and relied upon in the answer is that plaintiff was negligent in operating the car, and in the way he endeavored to jump off same when it became derailed at the trestle, and a perusal of the facts in evidence shows that the charge of his Honor is fully justified and sustained.\nWe find no reversible error in the record, and the judgment for plaintiff is\nAffirmed.", "type": "majority", "author": "Hoke, J." } ], "attorneys": [ "Sutton & Stillwell and Martin, Rollins & Wright for plaintiff.", "Stevens & Anderson for defendants." ], "corrections": "", "head_matter": "WILLIAM BATTLE v. CLEAVE & ROGERS, Receivers of the CHAMPION LUMBER COMPANY.\n(Filed 20 December, 1919.)\n1. Railroads \u2014 Derailment\u2014Negligence\u2014Evidence\u2014Nonsuit\u2014Trials.\nUpon evidence tending to show that while plaintiff, an employee of the defendant railroad, was riding with the defendant\u2019s superintendent on a hand or push car, recently repaired in the defendant\u2019s shop, the two front wheels \u201cdropped on the track\u201d; which the superintendent explained as a certain lack of proper repair, and that the car should be sent back to the shop; that further along on a trestle the same thing again occurred, throwing plaintiff to his injury: Held, the derailment of the car was in itself evidence of negligence, and taken with the other testimony as to the defective repair of the car, a motion as of nonsuit was properly disallowed.\n2. Evidence \u2014 Nonsuit\u2014Trials.\n\u2022 Where the defendant, in an action to recover, damages for a personal injury alleged to have been negligently inflicted, relies for defense upon the plaintiff\u2019s contributory negligence, and there is evidence that the defendant\u2019s negligence caused the injury alleged, the burden of showing this defense is on the defendant, and a motion as of nonsuit may never be allowed on such issue where the pertinent and controlling facts are in dispute, or where opposing inferences are permissible from plaintiff\u2019s proof, or where it is necessary in support of the motion to rely, in whole or in part, on evidence offered for the defense.\n3. Same \u2014 Contributory Negligence \u2014 Instructions\u2014Verdict Directing.\nUpon evidence showing that the superintendent of defendant railroad company had just brought the defendant\u2019s hand ear from the defendant\u2019s repair shop, and upon its being derailed while he and the plaintiff were riding thereon he stated \u201cthey had not adjusted the car properly, and it would have to go back to the shop\u201d; that further on the car again became derailed in like manner, at a trestle, throwing the plaintiff some eight or ten feet to his- injury, the superintendent remaining unhurt, and affording evid\u00e9nce of the defendant\u2019s actionable negligence: Held, the suggestion of the superintendent did not give import of such menace as to constitute contributory negligence on the part of the plaintiff in continuing to ride with him, and operate the car under the circumstances, and the charge to the jury in this ease that there was no evidence thereof is sustained.\nCivil actioN, tried before McElroy, J., and a jury, at May Term, 1919, of JaousoN.\nThe action is to recover damages for physical injuries caused by negligence of defendants in the equipment and operation of the railroad of defendant company.\nThere was denial of liability and plea of contributory negligence on part of plaintiff, and, on issues so raised, verdict for plaintiff. Judgment on verdict, and defendant excepted and appealed.\nSutton & Stillwell and Martin, Rollins & Wright for plaintiff.\nStevens & Anderson for defendants." }, "file_name": "0112-01", "first_page_order": 168, "last_page_order": 171 }