Coley v. North Carolina Railroad

MONTGOMERY, J.,

dissenting.

I cam not concur in the opinion of the Court. It seems that the General Assembly in the Private Laws of 1897, ch. 56, has deprived the defendant of its plea of assumption of risk. As is said in the opinion of the Court the effect of that legislation in respect to assumption of risk had not been called to the attention of counsel in the cause or to that of the Court; but nevertheless we find upon an examination of 'the statute that to be its plain construction. But the issue on the “assumption, of risk” being eliminated does not prevent the operation of the principle of contributory negligence, and it seems, to me that the evidence of the plaintiff himself furnishes such clear and convincing proof that his own negligent aict was the direct and proximate cause of his injury, that his Honor should have told the jury that upon his evidence they should respond “Yes” to the second issue. Neal v. Railroad, 126 N. C., 634.

There was a by-law of th'e company in the following words: “ ‘S.’ Every employee must exercise the utmost caution to avoid injury to himself or to his fellows, especially in the switching of cars and in -all movements of trains, in which work each employee must look after and be responsible for his own safety. Jumping on or off trains or engines in motion, getting between cars in motion to couple or uncouple them, and all similar imprudences are dangerous and in violation of duty. All employees are warned that if they commit these imprudences it will be at their own peril and risk.” The plaintiff knew of that by-law, and with a full knowledge *544 of wh'at be said himself was an obvious defeat in the construction of the tender, to-wit the lack of a grab-iron, got up on. the tender while it and the engine were in motion and undertook to lift himself from the cross-step- up- to a higher platform by grasping a drain-pipe, which, he says himself, he had never examined, and that too with the engine and tender moving backwards, his injury being certain if the pipe should give- w’ay.

A prayer for instruction by defendant on the point of the plaintiff’s using the grab-iron for the purpose with which he did, was directed to the first issue, and refused on that account. But his Honor undertook to charge the jury in respect to- the contributory negligence of the plaintiff and failed to Call their attention to- the plaintiff’s neglect to examine the grab-iron, which, in my opinion, was the mos-t important point in the negligent course and conduct of the plaintiff. Especially is that failure on the part of his Honor am error, when it can be seen from tire record that his Honor in speaking to the jury about the time and the circumstances of the seizing o-f the drain-pipe by the plaintiff,misconceived entirely the evidence o-f the plaintiff on an important and vital point, and as a consequence failed to instruct the jury properly as to those conditions. His Honor said: “In regard to a violation of a known rule of the company, his (plaintiff’s) statement was that the rule was that he should not get on the engine in motion. He says that the engine had n-ot started, but did start after he got up-, and he Contends that the injury did not result from that, but from his taking hold of the drain-pipe, -and that that was the natural thing for him to do, and he asked the jury to so find.” The plaintiff had testified that the engine and tender were in motion when he got upon the step; that it was going at aho-ut -a mile an hour when he got on and -about two or three miles and hour when he fell.

There is an exception by the defendant to- this misrecital *545 of the evidence land its effect. Certainly if tire injury wns caused from the plaintiffs taking bold of tbe drain-pipe that was the proximate cause of the injury, and as his Honor had told the jury that the drain-pipe wlae not made to be taken hold of by the plaintiff, and that they should not consider the drain-pipe in any aspect whatever ais connected with the defendant’s negligence, the plaintiff’s use of it for the purpose with which he did use it was an act of negligence so gross that his Honor should have instructed them to find the second issue “Yes.”

In reference to the rale laid down by his Honor as to the measure of damages, I think that it was not sufficiently definite, taken in connection with the rale which counsel of the plaintiff argued to the jury. I know that a trial Judge is noit expected to controvert every erroneous argument made by counsel in the course of the trial, buit after that part of the argument referred to' in this case, his Honor should have in some way have explained more fully what he meant by the words “the present net money value of such loss, incident to his injury.”

I think there was error.

Cook, J., dissents.