#### MOSES L. HILL, by His Next Friend, v. NORTH CAROLINA RAILROAD COMPANY and DIRECTOR GENERAL OF RAILROADS.

(Filed 1 December, 1920.)

1. Railroads — Evidence—Negligence—Contributory Negligence — Trials— Questions íor Jury — Master and Servant — Employer and Employee.

Evidence that an employee of a railroad company, in the performance of his duties, and obeying the order of its foreman, left a place of safety on its train, provided for his return from work, boarded the train as it was leaving, and was prevented from entering a car on the train because of its narrow door and crowded condition; and while thus being compelled to ride on its running board was struck and injured after going about three hundred yards, by a switch post placed about eighteen inches therefrom, and when the speed of the train had reached twenty miles an hour, and that in starting no whistle was blown or bell rung, is sufficient evidence of the defendant’s actionable negligence, and also of the plaintiff's contributory negligence in not doing what was required of him to reach a place of safety or avoid striking the switch post, within the stated space, to take the case to the jury on both of these issues.

2. Employer and Employee — Master and Servant — Negligence—Safe Place to Work — Duty of Employer.

Where an employee is injured under dangerous conditions of which the employer has better opportunity to be aware of, the obligation to exercise care rests to a greater degree upon the employer, upon the principle which requires him to provide the employee a safe place to work in the performance of his duties.

3. Damages — Negligence—Personal Injury.

The measure of damages to be awarded for a negligent personal injury, resulting in a diminution of earning power, is a sum equal to the present worth of such diminution, for the plaintiff’s expectancy of life.

4. Appeal and Error — Negligence—Objections and Exceptions — Instructions — Requests.

Where an instruction to the jury upon the measure of damages recoverable for a negligent personal injury, resulting in a diminution of earning power, is not inherently erroneous, it will not be held as such on appeal for not being sufficiently explicit, in the absence of a correct request for special instruction stating the appellant’s view.

Appeal from Lane, Jat September Term, 1920, of RowaN.

Tbe facts dedueible from tbe plaintiff’s testimony and tbe testimony of tbe plaintiff’s witnesses are as follows: Plaintiff, fifteen years of age, was employed by tbe defendant to work at tbe defendant’s railroad shops at Spencer, N. C. Plaintiff lived in Salisbury, N. C., and was carried to and from bis place'of employment by tbe defendant on an employee’s train, known as tbe “shop train,” consisting of cattle cars, converted into cars for employees to ride in, which were without platforms, steps, and doors, and were not equipped with bell ropes or signal *491cords, though there was a narrow entrance on the side of the car near its end. On the afternoon of 30'May, 1918, plaintiff boarded the rear car, or supply car, of the shop train to return home. The shop train proceeded toward Salisbury, stopped at the defendant’s transfer shed, and plaintiff was requested by a Mr. Litton, who had charge of the supply car, and who had heen the plaintiff’s foreman that day, to carry a rag wringer to the transfer shed office. Plaintiff immediately alighted from the supply car, ran to the transfer shed office, delivered the rag wringer, and ran hack to the train, which was then slowly moving off. No hell was run and no signal of any kind given for the starting of the train. Plaintiff boarded the running hoard of the nearest car, the fourth car from the rear car of the train, and endeavored to get in it, but was unable to do so on account of the narrow passageway being crowded and blocked by employees. The speed of the train rapidly increased to a rate of twenty miles an hour, and after riding a distance of approximately three hundred yards, plaintiff was struck by a switch post four and a half feet high, standing eighteen inches from the running hoard, and knocked beneath the wheels of the train. Plaintiff’s left foot was crushed six inches above the ankle, and his right foot severely injured. The shop train ran by the plaintiff. The rear car stopped sixty feet from where plaintiff lay beside the track.

The jury returned a verdict finding negligence of defendant, contributory negligence of plaintiff, and assessed damages at $4,000. Judgment thereon, and defendant appealed.

John O. Bushy and A. H. Price for plaintiff.

Linn & Linn for defendant.

"WalKER, J.,

after stating the case: There was evidence tending to show negligence on the part of the defendant which was, and should have been, submitted to the jury. The plaintiff was ordered by one having authority 'to give the order to leave the train, on which he was at the time, and deliver a rag wringer at the transfer shed office, which order he obeyed, and before he could return to the train and to the position which he had previously occupied thereon, the train started off. Plaintiff got upon the running board of the car safely, although the-train was in motion and increasing its speed all the time until it was running at the rate of twenty miles an hour, when he was struck by a switch post and knocked under the wheels of the train. There also was testimony that he could not get inside of the car, because it was so crowded with the hands as to prevent his doing so. It was the duty of the defendant, through its servants in charge of the train, to allow plaintiff sufficient time to do what he was ordered to do, and to return to the car he *492bad left, or, at least, to some sáfe place on tbe train. Instead, because of tbe crowded condition of tbe supply car, be was-compelled to occupy a place of danger, where be was liable to be struck, and was struck by tbe switch post, and injured as be described. At tbe time be was an employee of tbe defendant, and as such be was entitled to be furnished by him, in tbe exercise of due care, a reasonably safe place to perform bis work whiledn bis service. Atkins v. Madry, 174 N. C., 187; Taylor v. Power Co., ibid., 583. If a master has a better opportunity to know of defects and dangers than bis servant, to whom they are unknown, tbe obligation to exercise care is not exactly tbe same. Atkins v. Madry, supra. This duty which tbe defendant owed to him was not fulfilled, and because of this failure of duty, be was severely hurt. It cannot be successfully asserted that it was not tbe proximate cause of tbe injury. He was standing on tbe running board, tbe only place be could stand, and was struck by tbe switch post, which was placed near tbe side of tbe railroad, track. Tbe defendant knew of tbe danger, or should have known of it, and be should not have so acted as to expose tbe plaintiff to it. It was tbe combination of running board and switch post, placed so near to each other as to strike one standing on .the former that caused injury to plaintiff, who was unaware of tbe dangerous situation. Defendant should have placed them wider apart, or be should have warned the plaintiff of tbe danger. Whether plaintiff exercised due care while bolding on to tbe grab-iron in order to secure and steady himself, or carelessly bowed bis back too much, or whether be could have entered tbe car by reasonable effort and prevented tbe injury, or whether be could have otherwise avoided it, raised questions for tbe jury. We do not see bow it could be a question of law under tbe circumstances, as contended that it was. Under tbe instructions of tbe judge, tbe jury found that tbe plaintiff was guilty of contributory negligence, which affected tbe question of damages only, and was not a bar to plaintiff’s recovery. Tbe charge of tbe judge was correct in respect to tbe negligence, and very fair.

Myers v. R. R., 166 N. C., 233, in its essential facts, resembles this ease, and there it was held, where tbe plaintiff acted under a similar order of bis superior, that bis conduct in getting on tbe train made contributory negligence a question for tbe jury.

As to tbe damages, it is objected that tbe true rule was not given to tbe jury, which is, that tbe damages to be awarded for a negligent personal injury, resulting in a diminution of earning power, is a sum equal to tbe present worth of such diminution, and not its aggregate for plaintiff’s expectancy of life. This rule is tbe correct one. Otherwise, a plaintiff would recover now for losses, by reason of diminished earning capacity, though they are sustained in ten, twenty, or even thirty

*493years bence, without any consideration of the fact that he is not entitled to the whole of them presently, as these losses could only be incurred at different periods in the future. Something, therefore, must be allowed, because he is compensated for them before the time when they would be actually suffered. Many cases, in different jurisdictions, sustain the rule. Fry v. R. R., 159 N. C., 362; Johnson v. R. R., 163 N. C., 431; Pickett v. R. R., 117 N. C., 616; Wilkinson v. Dunbar, 149 N. C., 20; Benton v. R. R., 122 N. C., 1007; Watson v. R. R., 133 N. C., 188; O'Brien v. White, 105 Me., 308; R. R. v. Carroll, 184 Fed. Rep., 772; Fulsome v. Concord, 46 Vt., 135; Kenny v. Folkerts, 84 Mich., 616. But the charge did not altogether ignore this rule, though it was not as fully stated as it might have been. If the defendant desired it to be stated more fully, or in any special way, he should himself have asked for an instruction sufficient to present his view, or so as to direct the attention and consideration of the jury more pointedly to the rule of damages. Simmons v. Davenport, 140 N. C., 407; Beck v. Tanning Co., 179 N. C., 123, 127. We have recently said upon this question, in the case of Harris v. Turner, 179 N. C., 322, at p. 325: “The judge left the question of damages entirely to the jury, for he could not decide it as a matter of law. . . . 'When the judge left the amount paid by the defendants for the jury to find, defendants were silent, and, therefore, assented to this treatment of the question. If the defendants desired a special instruction, to guide the jury, they should have asked for it. Simmons v. Davenport, 140 N. C., 407. We there held that if a party desires fuller or more specific instructions than those given by the court in the general charge, he must ask for them, and not wait until the verdict has gone against him, and then, for the first time, complain that an error was committed.” And in Davis v. Keen, 142 N. C., at p. 502: “Any omission to state the evidence correctly or to charge in any particular way should be called to the attention of the court before verdict, so that the judge may have opportunity to correct the oversight. A party cannot be silent under such circumstances, and, after availing himself of the chance to win a verdict, raise an objection afterwards. He is too late. His silence will be adjudged a waiver of his right to object, where the instruction of the court is not itself erroneous. This has been approved in many cases, and very lately in several,” citing Baggett v. Lanier, 178 N. C., 132; Futch v. R. R., ibid., 282; Sears v. R. R., ibid., 285; S. v. Stancill, ibid., 683. The instruction, as to damages, was somewhat general, but not inherently erroneous, and, therefore, the rule of practice, which we have just stated, should apply.

We find no error in the case or record.

No error.