This is an action for damages received by the alleged negligence of defendant company. The plaintiff was an employee of the defendant at the time of the injury complained of, and, while he did not occupy the position of a "section master," his business was to do the work of a section master. He and a man by the name of Moring each had a squad of hands that worked under them, doing such work. But neither he nor Moring had any separate part or section of the defendant's road assigned to them, but they worked on any part of the road, under the directions of Mr. Mills, the President and Superintendent of the road; that the plaintiff had been sick and absent from the road, at his home in Chatham County, for two weeks just before he received this injury; that on his return to his work, Mr. Mills furnished him with a bill, or memorandum, of 11 points on the road that needed repairs. The ninth of these was in following language: "(9) Low joint south of second trestle below Willow Springs;" and it is contended by the defendant that this is the point at which the injury occurred. But this was disputed by the plaintiff, and both sides introduced evidence as to this being the point where the injury was received. The plaintiff and crew that worked under him were traveling over the road on a handcar at the time of the injury, the plaintiff standing upon the car when it became derailed, and, from the sudden jar, the plaintiff was thrown off and injured. The theory of the plaintiff is that *Page 141 there was what is called a "dodged joint" in the road at this point; that defendant's duty was to keep its roadbed in good repair; that it was its duty to know if it was not in good condition, and that in fact it did know that its road was not good condition, and that it negligently allowed it (209) to remain in bad condition, and that this negligence was the cause of the plaintiff's injury. The defendant contended that the plaintiff's own negligence was the cause of his injury; that he was running this car at too great speed at the time of the injury, by reason of which the car was derailed; that the car was worked by means of a lever, and was jerked off the track by the violent manner in which the lever was worked; that the plaintiff had been cautioned by the defendant against running his car so fast over the road, but continued to do so, in violation of the orders of the defendant; that, had the plaintiff been running his car at a proper rate of speed, the accident would not have occurred; that in this way the plaintiff, by his own negligence, was the author of his injury, and was not injured by the negligence of the defendant. The defendant also contended that the plaintiff was employed by defendant to do this work, and that he assumed the risk of danger and damage connected therewith, and that he can not recover on that account.
A great many points were raised and discussed during the trial below and here. But the principal questions, as it seems to us, are those we have stated, and will be first discussed. Both sides offered a great amount of testimony to sustain their contention, but it is not necessary that we should repeat or discuss the same at this time, as it seems to `is it was fairly submitted to the jury. There is one exception to evidence which it will be necessary for us to notice before we conclude this opinion.
The defendant makes a great number of exceptions to the charge, all of which have been examined, but only a few of them will be discussed, as they can not ha sustained, and their discussion would be of no benefit. The plaintiff's right to recover depends upon the application of the principles of law to the contention of the parties as to the negligence (210) of plaintiff and the negligence of the defendant — as to whether the injury was caused by the negligent speed and manner in which the plaintiff operated his cat or whether it was caused by the negligence of defendant in not making and keeping its road and roadbed in good and safe condition. It was the duty of the defendant to construct and maintain a safe roadbed, and a failure to do so is negligence per se.Marcom v. *Page 142 R. R., 126 N.C. 200. It is admitted by the defendant that its roadbed was not in a good and safe condition at the point where this injury occurred, and that the defendant knew it was not. From this admitted negligence of the defendant, it will be presumed that defendant's negligence was the cause of plaintiff's injury. Marcom v. R. R., supra. And the burden is then cast upon the defendant to show that it was not its negligence, but that it was the negligence of the plaintiff, or that it was the concurrent negligence of the plaintiff, that caused the injury, or, as in Marcom's case, supra, it was caused by acts or influences over which the defendant had no control. The defendant in this case undertook to do this by showing that plaintiff was its employee, and in charge of the work of examining the roadbed and repairing the same; and, although it might have been the defect in the roadbed — the "dodged joint" — that caused it, that it was his fault and negligence that it was not repaired. But the evidence was that plaintiff bad been absent for two weeks on account of sickness, and he testifies that the roadbed was in good condition when he left, and that he bad not had time or opportunity to inspect the road after his return, as he had been working under the special directions of Mills, the general superintendent; and he denies that this defect was one of those mentioned in the list furnished him by the superintendent, or, if it was, it was not so described as to point it out to him as one of the points (211) on the road that needed repair. These contentions were submitted to the jury, with proper instructions, as it seems to us.
The defendant also contended that the injury was caused by the concurring negligence of the plaintiff, in the manner and speed at which he ran and operated his car, and that the injury would not have occurred but for that, although the roadbed was defective. This contention, it seems to us, was also left to the jury, with proper instructions.
It is also contended by the defendant that, by the nature of plaintiff's employment, he assumed all risks incident thereto, and that he can not recover on that account. But we do not agree to this contention of the defendant. It is the duty (as we have stated) that defendant shall make and keep its roadbed in good and safe condition. The defendant admits that its roadbed was not in a good and safe condition at this point, and it knew it was not. The plaintiff had the right to assume it was in good condition if he did not know of the defect, as the jury must have found under the charge of the Court. The Court upon this point charged the jury as *Page 143 follows: "If the jury shall find from the evidence that there was a defect in the defendant's track, in regard to a `dodged joint,' or a low joint, and shall further find that such defect was the proximate cause of the plaintiff's injury, yet, if the jury shall further find that both plaintiff and defendant had equal knowledge of the existence of said defect, then plaintiff can not recover." "If the jury shall find from the evidence that the proximate cause of the plaintiff's injury was a `dodged joint,' or a low joint, in defendant's track, and that plaintiff had knowledge of the existence of such defect, or, in the recourse of his employment, should have known of the existence of the same, the plaintiff can not recover of defendant damages for such injury." This, we think, takes out of the case any grounds for the claim by the defendant that the plaintiff (212) can not recover on account of his assumption of risk. The defendant asked for several special instructions, which were not given by the Court. But the only one to which it was entitled was given in the charge of the Court in almost the exact language of the prayer, it being that part of the charge of the Court that we have quoted above.
The plaintiff was allowed, over the objection of defendant, to testify, with the view of fixing the amount of his recovery, that he was receiving $40 per month, or $480 per year, from the defendant company, and that he was making, in addition to this, a profit by selling rations to the railroad hands sufficient to make his earnings $600 per annum. It may he that this was not a very proper way of increasing his earnings, as was argued by the defendant's counsel. But we do not see enough of these transactions to judge of this matter. It may have been that he furnished these rations at a reasonable profit, and that it was an accommodation to the hands for him to do so. And it may be that he received this employment at $40 per month with this privilege, when he would have charged the defendant $50 per month without it. And as we can not see that there was anything wrong in these transactions, and the evidence was for the purpose of showing his earning capacity, we think it was competent.
The defendant also demurred ore tenus to the plaintiff's complaint, and contended that it did not state a cause of action. But we can not sustain his demurrer.
The defendant, during the progress of the trial below, moved, under chapter 109, Laws 1897, eight times, to dismiss the plaintiff's action, and each time its motion was refused, and it excepted; and the defendant in its argument here insists that it was right in all of the eight motions. But we find *Page 144 (213) it to he our duty to sustain the ruling of the Judge below as to all eight of these motions. This, it seems to us, was to overwork the "Hinsdale Act."
The defendant also moved before us for a new trial for newly-discovered evidence. But it does not seem that the defendant used that diligence in trying to procure this new evidence that it should have done; these new witnesses all being known to defendant, living in the neighborhood, and employees of defendant. Shehan v. Malone, 72 N.C. 59; Simmons v. Mann,92 N.C. 12. Besides, it was only cumulative evidence, and a new trial will not be granted for such evidence. Love v. Blewit, 21 N.C. 108. This motion is refused.
The Judge in charging the jury generally uses the approved formula, "if they shall find from the evidence." But in three paragraphs of his charge he uses the words, "if you believe," and the defendant excepts to this, and cites S. v. Barrett,123 N.C. 753. When that opinion was written, it was supposed that such charges were made through carelessness and inattention, and we were in hopes that, upon the attention of the Judge being called to the matter, it would be corrected. The objection to this style of charging a jury is substantial. A juror should be governed in his findings by the evidence. Often jurors know something of the facts of a case, outside of the evidence, that causes them to believe that it is a certain way, and yet it would be highly improper for them to be governed in their verdict by such knowledge. They may believe it is that way, when they would not and could not so find from the evidence. The defendant would be entitled to a new trial for this error, if it had occurred in that part of the charge that was material to the verdict in the case. We are of the opinion that the law has been substantially and correctly administered (214) by the court below, and we therefore affirm the judgment.
Affirmed.
Cited: Sossoman v. Cruse, 133 N.C. 473; S. v. R. R., 145 N.C. 572, 7; Merrell v. Dudley, 139 N.C. 59; Aden v. Doub, 146 N.C.. 13; Gay v.Mitchell, Ib., 511; Winslow v. Hardwood Co., 147 N.C. 280. *Page 145