Bloxham v. Stave & Timber Corp. , 172 N.C. 37 ( 1916 )

WalKee, J.,

after stating the ease: Some of the assignments of error are directed to the absence of evidence to show any negligence on the part of defendant, arising from tbe failure of tbe engineer to see tbe falling tree in time to bave stopped bis engine and prevented tbe injury, and to tbe fact that plaintiff was in full charge and control of tbe defendants’ business and logging operations, including tbe running of tbe engine and cars, and therefore assumed all risks of injury therefrom; and, further, that there is no evidence to support tbe finding of tbe jury that plaintiff was injured by defendants’ negligence. A careful review of tbe record will show that these contentions should not be sustained, as there was evidence which tended to show that tbe defendants were not legally in fault, and, therefore, not responsible for this deplorable occurrence, which has shattered the plaintiff’s health and subjected him to great and constant suffering; and there was also evidence which tended to show the contrary, and that the injury was directly traceable to the defendants’ negligence. In this state of the proof the case was one for the jury, and we are of the opinion that the charge of the court was not only fair and impartial, but that it contained a full explanation of the law applicable to the facts as they might be found by the jury, and in many respects it was exceedingly favorable to the defendants.

It is true that the statements made by the plaintiff just after he was injured, if they were true, exonerated the defendants from any blame; but they were made, as the plaintiff testified, when he was suffering greatly, both in mind and body, from his injuries. He described his condition as follows: “I went to Norfolk and had Dr. Seelinger there. It is impossible for me to describe how I felt. I was a total wreck, is all I can say. My left arm was broken in two places, and there were two dislocations. The bones of the hand were driven back into the wrist of both hands. I had a bruise on my forehead over the left eye, and I had a bruis.e on the back of my head. I feel both of those physical injuries now. In regard to the arm, I always have a pain there. Sometimes it is so bad I can’t sleep with it, and sometimes it does not discommode me, as I get used to it. [Witness illustrates what use he has of the arm by moving it.] I can raise it higher than that by the shoulder. I was confined to my home by this accident about a month, I think, the first time. I can’t tell you to the day. Then I tried to go out and do something, but it was just misery.”

It is not to be expected that a man under such distressing circumstances can describe an occurrence as well and with as clear and retentive a memory as when his faculties and senses are either restored or in a more normal condition. Rut, however this may be, the whole matter, including the conflict and discrepancies in the evidence, was for the jury. How can we say, as matter of law, that he told the truth the first, time, and not the second, or even that what is attributed to him really agrees with the facts? The case of Dail v. Taylor, 151 N. C., 284, accurately states the law in respect to sucb a conflict of evidence. Justice Hoke there says: “While we hold this to be a correct position as to mere proof of the occurrence, we are of opinion that there was error in sustaining defendant’s motion for nonsuit, for the reason that there was additional testimony tending to show a want of proper care on the part of the defendant. 0. S. Weslett testified: ‘That all along for the last two years witness had seen these coca-cola bottles from defendant’s works explode in the store.’ True, the witness seems subsequently to have given evidence qualifying this statement; but we are not at liberty to select the more favorable portion of a witness’s statement and act on it for defendant’s benefit. In a motion of this kind we have repeatedly held that the evidence making for plaintiff’s claim must be taken as true and interpreted in the light most favorable for him; and, applying this rule, we think the additional testimony' as indicated, with the evidence describing the occurrence, presents a case which requires that the issues raised should be submitted to the jury, and that the order directing a nonsuit was erroneous.”

The charge of the court was singularly responsive to the requests of the defendants in respect to the question of negligence, and it substantially submitted to the jury for their consideration every phase of the law embraced by them, and almost in their very language. There was no change of expression, as will be seen, which affected the substance of them. This brought the case to the simple question as to which version of the facts the jury would accept. It must not be forgotten that there was testimony that the plaintiff halloed to the engineer, as did also another person, and also that the engineer had been instructed to look out for falling trees, and he testified that he looked immediately after the alarm was given.

It is urged by the defendants that they are not responsible to plaintiff, as their vice principal, for the negligence of the engineer, one of his subordinates, because, as held in McGrory v. Co., 23 L. R. A. (N. S.), 301, such act of negligence on the part of defendants’ servant is one of the ordinary risks assumed by the plaintiff when he entered their service. But this leaves out of consideration the fact that this common-law rule no longer is in force with us, as the Legislature has abrogated it,'and enacted that assumption of risks shall not be a defense for a railroad company in an action by one of its employees for damages on account of injuries sustained by reason of the negligence of another employee. Revisal, sec. 2646; Fitzgerald v. R. R., 141 N. C., 530; Coley v. R. R., 128 N. C., 534, and 129 N. C., 407. It was held in the Fitzgerald case that “The statute known as the Fellow-servant Act, published as chapter 56, Private Laws 1897, where the same applies, has the effect of making all coemployees of railroad companies agents and vice principals of the company so far as fixing the company with responsibility for tbeir negligence is concerned. While commonly spoken of as the ‘Fellow-servant Act/ it is entitled ‘An Act to Prescribe the Liability of Railroads in Certain Cases/ and it operates on all employees of the company, whether in superior, equal or subordinate positions.” The statute also applies to logging roads. Hemphill v. Lumber Co., 141 N. C., 487; Hairston v. Leather Co., 143 N. C., 512; Bird v. Leather Co., ibid., 283; Roberson v. Lumber Co., 154 N. C., 328. The defense of assumption of risks is not, therefore, available to the defendants. The jury have properly found that plaintiff was not guilty of contributory negligence, so that these two defenses have both been disposed of, one by the law and the other by the jury upon the evidence and correct instructions of the court.

The plaintiff testified that the engineer could have taken in the exact situation as well as he could, and that with proper attention and care the engine could have been brought to a full stop by the engineer in time for plaintiff to have escaped the injury.

The shifting of the winds was not the proximate cause of the injury. Although the act of God, for which they are not responsible, as contended by defendants, it is considered to be the remote cause if, after the winds changed in direction, and the tree had started in its course toward the car, the engineer had a fair opportunity to stop the engine, after becoming aware of the danger. If these are the facts, the injury to plaintiff was not the result of an accident, but of direct causation.

In determining whether the engineer was guilty of negligence, the situation and his surroundings were proper subjects for the jury to consider. If he was suddenly confronted by a serious emergency or peril, the law required of him only the care which'a man of ordinary prudence would have exercised in the same circumstances, and makes proper allowance for excitement, terror, or the instinct of self-preservation. But this was all fully explained to the jury, and if on any phase of the case the defendants desired more specific instructions, they should have asked for them. Simmons v. Davenport, 140 N. C., 407.

There are numerous positions taken by the defendants, in their brief, some of them relating to matters presented for the first time in the assignments for error, which is too late (Harrison v. Dill, 169 N. C., 542), and others which are really subsidiary to those we have already discussed, and are controlled by the general principles we have stated. The charge of the court covered the entire ca.se, and notwithstanding the attack made upon it, which we think is groundless, it was eminently fair and just to both parties and characterized by the closest attention even to the details of the evidence. There was nothing in it of which defendants can justly complain as being an intimation of opinion upon the facts, but, on the contrary, it has the merit of being an unusually clear, strong, and comprehensive review of the case, and such as no jury could misunderstand. It is exceptionally free from anything of a foreign nature, and is a remarkably plain, direct, and forceful statement of tbe facts and tbe law of tbe case, sueb as is calculated to bring tbe jury to a fair and just understanding of tbe issues.

As to tbe liability of tbe defendants other than tbe corporation, it is sufficient to say that there was evidence for tbe jury to consider, and which was properly left to them. Tbe pleading in the other suit mentioned was competent as a declaration of tbe party who is a defendant in this action, and it makes no difference that tbe other suit was not between tbe parties in this one. "We find tbe rule thus stated in 1 Enc. of Evidence, p. 425: “It is not necessary to tbe competency of a pleading, as an admission against tbe party, that it be one filed in an action between tbe same parties. A pleading filed in any action is competent against tbe party if be signed it or otherwise acquiesced in tbe statements contained in it, if such statements are material and otherwise competent as evidence in tbe cause on trial, not by way of estoppel, but as evidence, open to rebuttal, that be admitted such facts.” Tbe same principle was applied, at this term, in Alsworth v. Cedar Works, ante, 17. See, also, Cummings v. Hoffman, 113 N. C., 267. It is not so much tbe timé, place, or manner of making a declaration or admission, as tbe fact of tbe admission, its substance, and its relevancy to tbe questions in dispute. These matters were 'all fully and sufficiently explained to tbe jury. Tbe statement in tbe letter was not conclusive, but open to contradiction by direct or circumstantial evidence, and it was for tbe jury to say whether there bad been any substantial change in tbe relations of tbe individual defendants to tbe property, and tbe business in which tbe plaintiff was employed at tbe time of bis injury.

We have considered this case with great pains and some elaboration, because of tbe length of tbe record and tbe many and important questions involved; but upon a careful review of it we conclude that it has been correctly tried.

No error.