STACY, J., concurs in the result. This an action by the plaintiff for injuries sustained by him in the course of his employment. The plaintiff was the agent of the defendant company at Oak City, N.C. on its line between Parmele and Weldon. His duties required him to sell tickets, receive and deliver freight, and handle baggage. In January, 1913, the plaintiff alleges and testified that in lifting a piece of baggage from the ground to the train he sustained a slight rupture, and immediately requested the defendant's superintendant to supply him with a baggage truck. The truck was not sent, and though the plaintiff repeatedly asked for the same, and was assured that it would be sent, it was not supplied.
In June, 1916, as the complaint alleges, and plaintiff testified, a piece of baggage was put off at Oak City and remained some hours. The baggage was checked with a plain check, nothing to indicate that it was of excessive weight. On the same afternoon when the train for Greensville [Greenville] was coming into the station, the owner of the baggage applied for a check to Greenville. The check was issued and the plaintiff immediately went to the train and attempted to put it on. The baggage was so heavy that when plaintiff lifted it, as he testified, it tore him loose in the lower part of the abdomen. He fell to the ground and was severely injured, from which injuries he has never recovered. *Page 77
The baggage in question weighed 250 pounds, being 100 pounds overweight, and the plaintiff testified that there was no check on its arrival there which showed it was excess baggage or he would not have attempted to lift it. On account of the injuries sustained, the (74) plaintiff was compelled to go to a hospital for treatment, and by reason of his injuries he was obliged a short time thereafter to give up his job, and since that time has not been able to do any heavy work of any kind, and is advised that he may suffer from strangulated heria [hernia] at any moment.
The plaintiff was corroborated as to these circumstances by several witnesses. At the close of his testimony the court granted defendant's motion to nonsuit. The plaintiff excepted and appealed. According to the allegations and the evidence, this was an intrastate transaction, the baggage of the passenger being checked from Oak City to Greenville, N.C. The evidence for the plaintiff on this motion to nonsuit must be taken in the light most favorable to him, and presents two causes of action: the negligent failure of defendant company to supply the plaintiff with the necessary equipment with which to perform the duties of his position, although he had asked for such equipment and been promised the same; and the negligent failure of the defendant company to indicate to the plaintiff that the baggage which had been brought by it from another point and delivered at Oak City was of excessive weight.
The evidence that the plaintiff had been injured by lifting a piece of baggage previously in 1913, and had complained to the superintendent, repeatedly asking for a truck, which the superintendent often promised to send but did not, was evidence of negligence sufficient to go to the jury.Pigford v. R. R., 160 N.C. 93. That he continued in the line of his employment, expecting compliance with the promise to send the truck, did not bar him by reason of any alleged assumption of risk. C.S., 3466, 3468. As said in Pigford's case, supra, a servant is not required to leave the service or refuse to go on with the work unless the danger is obvious or he knows and appreciates the danger.
In this case there was no mark on the baggage indicating that it weighed over 150 pounds. The fact that the company in bringing the baggage from Norfolk to Oak City had made no such indication by checking or otherwise, was evidence of negligence. In Cherry v. R. R., 174 N.C. 265, the plaintiff recovered the damages sustained in lifting a large cross-tie in the course of employment. *Page 78
C.S. 3465, provides that "any servant or employee of any railroad company operating in this State who shall suffer injury" in the course of his employment . . . "by any defect in the machinery, ways, or appliances of the company shall be entitled to maintain his action"; and in this case the plaintiff was entitled to have the jury determine (75) whether the defendant company was negligent in failing to supply the truck; whether the plaintiff assumed the risk in attempting to lift the baggage; and whether these were the proximate causes of injury. This being an intrastate matter, under C.S. 3467, the plaintiff was entitled to have his cause submitted to the jury, for, as therein provided, contributory negligence being no longer a bar to an action by an employee against the railroad for injuries sustained during his employment and the assumption of risk were for the jury, the burden of proof being upon the defendant.
The baggage was at the station, it was necessary to put it on the outgoing train, it was the plaintiff's duty in the course of his employment to put it on, and he had to do it without other means at hand than his own strength, the company having failed to furnish him with proper appliances. He had no warning that the baggage was excessive in weight.
As to the second ground of negligence alleged: The failure of the defendant company to indicate that the baggage complained of was of excessive weight, the testimony of the plaintiff was that the company issued a different kind of check for baggage over 150 pounds weight. This baggage having been brought there from Norfolk by the defendant company, the transfer of it to another line of the defendant and the checking of it from Oak City to Greenville was a part of the intrastate carriage, and our State statute applies.
From both points of view, i. e., the failure to supply a truck for lifting baggage after notice to the superintendent of an injury previously sustained and the failure of the company to comply with its repeated promises to furnish such truck, and also by reason of this baggage being left at Oak City without any indication of its excessive weight, the evidence should have been properly submitted to a jury.
The burden of proof of the allegations of contributory negligence rests upon the defendant, Sims v. Lindsay, 122 N.C. 682, and numerous cases cited therto [thereto] in the Anno. Ed.
Assumption of risk is also a matter of defense analogous to contributory negligence to be passed upon by the jury who are to say whether the employee voluntarily assumed the risk; it is not enough to show merely that he worked on, knowing the danger. Lloyd v. Hanes, 126 N.C. 359, and numerous cases cited therto [thereto] in the Anno. Ed.; C.S. 3468. *Page 79
It is worthy of note that this injury occurred seven years ago. There should not be such delays in the courts.
The judgment of nonsuit must be
Reversed.
STACY, J., concurs in result.
Cited: Barrett v. R. R., 192 N.C. 730; Jarvis v. Cotton Mills,194 N.C. 688; West v. Mining Corp., 198 N.C. 155.
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