Ware v. Southern Railway Co.

AlleN, J.

Tbe ease of Myers v. R. R., 166 N. C., 234, decided by a unanimous Court, is a controlling authority on both questions raised by tbe appeal, sustaining tbe exception to tbe charge and overruling tbe exceptions to tbe refusal to nonsuit tbe plaintiff.

In tbe Myers case■ tbe plaintiff was injured while attempting to get on a freight train running six or eight miles an hour, in obedience to tbe command of bis superior, and upon appeal a refusal to nonsuit was affirmed.

It also appears from an examination of tbe original record that his Honor charged tbe jury that if. they found from tbe evidence that tbe plaintiff was an employee of tbe defendant ;• that be was directed by his superior to get on tbe moving train; that be attempted to do so in obedience to tbe order 'given him; “that -the train was running at a speed of about seven miles an hour, and that a reasonable man could.have seen that it was dangerous for a man to get on a moving train going that fast”; that be used due care and caution in trying to do so, and was injured, and this was tbe proximate cause of.the injury, it would be tbe duty of tbe jury to answer tbe first issue “Yes.”

This charge was excepted to, and tbe exception was relied on in tbe brief, and tbe Court, without discussing each exception separately, says: “We have examined with care tbe exceptions set out in tbe record "to tbe reception and rejection of evidence, and also to tbe charge of tbe court, and we think tbe case was substantially tried-under tbe well-settled principles of law obtaining in this State.”

It will be observed that in tbe charge, which has been approved, bis Honor did not determine tbe fact that it was dangerous for an employee to get on a freight train moving seven miles an hour, nor did be declare as matter of law that to direct him to do so was negligence, nor did be instruct tbe jury to answer tbe first issue “Yes” without a finding that the negligence of tbe defendant was tbe proximate cause of bis injury. On' tbe contrary, be left tbe question of danger to tbe jury, under tbe rule of tbe reasonable or prudent man, and incorporated tbe principle of proximate cause as secondary before tbe issue could be answered in favor of tbe plaintiff, while in tbe charge now before us bis Honor declared a speed of six or seven miles an hour to be dangerous and eliminated tbe finding of proximate cause altogether, which is an essential fact involved in tbe first issue.

*504“The authorities fully sustain the position of the plaintiff, that it is negligence to run a train without a headlight at night along a track frequented by the public, but a plaintiff cannot recover upon proof of negligence alone. lie must go further and prove that the negligence complained of was the cause of his injury. Crenshaw v. R. R., 144 N. C., 314; Pritchett v. R. R., 157 N. C., 101; Henderson v. Traction Co., 132 N. C., 784.

“In the first of these cases the Court said: ‘The burden is always on the plaintiff to show by a preponderance of evidence that the defendant committed a negligent act, and that it was the proximate cause of the injury. The two facts must coexist and be established by the clear weight of the evidence before a case of actionable negligence is made out. Brewster v. Elizabeth City, 137 N. C., 392’; in the second: ‘In all courts where the common law is administered it is held that one cannot recover damages upon proof of negligence alone, and that he must proceed further and show that the negligence of which he complains was the real proximate cause of the injury’; and in the last: ‘It is generally held — and this we regard as the doctiine — that the element of proximate cause must be established, and it will not necessarily be presumed from the fact that a city ordinance or statute has been violated. Negligence, no matter in what it may consist, cannot result in a right of action unless it is the proximate cause of the injury complained of by the plaintiff.’ ” McNeill v. R. R., 167 N. C., 395.

That the question of proximate cause was material and in controversy is shown by the evidence of the defendant that the plaintiff was injured by his own carelessness, which caused him to stumble and fall on the car, and by the answer of the issue of contributory negligence in favor of the defendant.

There was less reason for submitting to the jury the question of the danger of getting on the moving car in the Myers case than in this, because the plaintiff in this action is an employee of experience who had for two years been jumping off and on the car when in motion without injury, while in the Myers case the injured employee was performing different services, some of them not connected with the operation of trains, and he was told to get on a heavy freight train, and in this on a low gasoline car. The danger was more apparent and the experience and skill of the employee less in the one case than in the other.

It is also recognized in Reeves v. R. R., 151 N. C., 318, that the rule which usually prevents a recovery by one injured while getting on a moving train does not apply in strictness to experienced trainmen, and if to do so cannot be declared to be contributory negligence as matter of law, why should a direction to get on under the same conditions be arbitrarily declared to be negligence, instead of leaving the question to *505the jury to say whether the officer giving the order was acting as a reasonably prudent man, considering the speed of the train, the experience of the employee and other relevant circumstances?

This seems to us to be the better and safer rule, and it leaves to the jury disputed facts instead of permitting the judge to decide them.

New trial.