Opinion
(16 October, 1900.)
EVIDENCE — Sufficiency — Master and Servant — Personal Injuries — Damages — Nonsuit — Trial.
Evidence in this case held insufficient to be submitted to the jury on the question whether the employer negligently caused the death of its employee.
ACTION by J. C. Meekins, administrator of John Jones, against the Norfolk and Southern Railway, heard by Judge A.L. Coble, at Spring Term, 1900, of TYRRELL. From judgment of nonsuit, the plaintiff appealed.
The plaintiff introduced Eliza Jones, who testified the plaintiff's intestate was her husband. That he died 1 June, 1898. He was about forty years of age. They would have (30) been married 24 years last March. He was fireman on steamer "Mary E. Roberts," which was operated by the defendant company connecting its road from Edenton to Mackey's Ferry. He had been on the boat for a long time. He received $25.00 per month and board and place to sleep until the railroad cut the salaries of its employees and then he received $22.00 per month instead of $25.00. That he would send her every month for her and the family $10, $15, $20, and sometimes all of his salary. He took good care of his family. He stayed at his work regularly. He got hurt in March, 1898.
On cross-examination, she said he had some cough after he returned from the hospital in Baltimore, where he carried her for treatment. It did not hinder him from his work.
Henry Whedbee introduced for plaintiff, testified that he was on the boat the day John Jones got hurt, saw him five or ten minutes before he got hurt. He was standing on a plank, which reached across the boat in the engine-room. He was reaching up after something. The plank was in the boiler-room, where he was found. It was admitted by the defendant that the plank was placed, when in its usual place, for the firemen to walk on from one side of the boat to the other. The boat was about half way between Edenton and Mackey's Ferry when said Jones was injured. He was in the engine-room, the place he belonged. The witness went on the upper deck, and in four or five minutes news came that John Jones had fallen. He then went down to the engine-room and Jones was lying in the Chief's room. The Chief was binding up the leg of the deceased. The deceased said to witness that the plank you saw me standing upon slipped and he fell. Don't think the plank was fastened. Have seen others walk across this plank. He was fireman on the boat.
On cross-examination, witness said he used to cross on this boat about twice a week. Each end of the plank (31) was in middle of door on each side of the boat. That he has seen the plank at a different place near the boiler. The plank was in the door over the steps. The place he usually saw it was near the boiler. It generally stayed in jambs and when it stayed in the jambs it could not slip. It seemed as he had put the plank out to reach up for something. This day the plank was not in the jambs at all. Usually it stayed in the jambs and a portion of it in the door. When in its usual place there was nothing to keep it from being pulled out in the door in the position it was in that morning. When the plank was in the usual place it could not slip endwise and it would not hardly slip sideways unless some one pulled it out. It was a loose plank.
J. C. Meekins introduced, testified he saw the plank a great many times; he never noticed plank enough to tell as to whether it would slip backward or forward. Saw nothing to keep it from slipping back and forward. That he is the administrator.
Dr. Ab. Alexander introduced and testified he knew deceased from childhood. He has seen the plank and does not think plank was fastened as to moving sideways. The large portion of plank was in front of the doors. He saw the deceased after his injury and would say the cause of his death was Bright's disease of the kidneys. Thinks the Bright's disease was caused by the fall. This fall shortened his life. His leg was broken and back hurt by the fall. The injury was the cause of the Bright's disease.
On cross-examination, he said that deceased had a cough and may have had some latent disease of the lungs. The deceased told witness that he was standing upon the board that was above the fire-room. That he was reaching above his head and the board slipped and he fell, falling on his back (32) and breaking his leg. That they took him out of the engine-room and told him his leg was broken; that he was taken to Dr. Dillard, who attended him for the fractured leg and injuries received, and he had not been free from since.
The witness said on cross-examination that this was same plank spoken of over the fire-room.
Plaintiff rested. The defendant moved for judgment as of nonsuit under Acts of 1897 and 1899. Motion sustained and plaintiff excepted.
Holton Alexander and E. F. Aydlett, for plaintiff.
Pruden Pruden and Shepherd Shepherd, for defendant.
DOUGLAS AND CLARK, JJ., dissent.
This action was brought by the administrator to recover damages for the death of his intestate, alleged to have taken place through the negligence of the defendant. The alleged negligence was that the defendant failed to provide for the deceased an appliance to be used over the hold of the boat for the use and convenience of the employees in passing from one side to the other, in the nature of a gang-plank, that was safe and suitable; the one in use having been alleged to have been made of unsound material, and not fastened and secured at its ends in jambs, so as to prevent its slipping and giving way. After the plaintiff had produced his evidence and rested his case, the defendant moved for judgment as of nonsuit, under chap. 109 of the Acts of 1897; and, upon the motion having been allowed, the plaintiff excepted and appealed. It therefore becomes necessary for us to consider and to decide whether the plaintiff's evidence, in a just and reasonable view of it, was sufficient to warrant the jury in finding the issue as to the defendant's negligence in the plaintiff's favor. If there was more than a scintilla offered on that issue by the plaintiff, the matter ought to have been submitted to the jury, (33) and there was error in the ruling of the Court below. If there was no fit evidence offered by the plaintiff to be submitted to the jury, then his Honor was correct in allowing the motion.
The defendant railroad company owned and operated a steamboat as a transfer boat between Edenton, N.C. and Mackey's Ferry; and the plaintiff's intestate was engaged in the service of the defendant, as fireman on the boat, at the time he received the injury which resulted in his death. Four witnesses were introduced and examined by the plaintiff, — Eliza Jones, widow of the intestate; Henry Whedbee, who was aboard the steamer the day of the accident, and who saw the intestate just before and just after he was hurt; the plaintiff, and Dr. Alexander, who saw the intestate after he was hurt. The evidence of the widow and the two last-named witnesses is immaterial on the question of the defendant's negligence. Whedbee testified on his examination-in-chief, in substance, that he saw the intestate, five or ten minutes before he got hurt, standing on a plank which reached across the boat in the engine-room, and that he was reaching up after something; that the intestate was in the engine-room, where he belonged; that in a few minutes he heard that the intestate had fallen, and immediately went to where he was; that the injured man said to the witness that the plank the witness saw the intestate standing upon slipped, and he fell; that the plank was not fastened. On his cross-examination the witness said that he used to cross on this boat about twice a week. Each end of the plank was in the middle of a door on each side of the boat and he had seen the plank at a different place, near the boiler. The plank was in the door, over the steps. The place he usually saw it was near the boiler. "It generally stayed in jambs, and when it stayed in the jambs it could not slip. It seems that he had put the plank out to reach up for something. (34) This day the plank was not in the jambs at all. Usually it stayed in the jambs, and a portion of it in the door. When it was in its usual place there was nothing to keep it from being pulled out in the door, in the position it was in that morning. When the plank was in the usual place, it could not slip endwise, and it would not hardly slip sideways unless some one pulled it out. It was a loose plank." We are of the opinion that the evidence was not sufficient in a just and reasonable view of it, to warrant the jury in finding the issue of negligence in favor of the plaintiff. The plank was sound, and it, or another like it, had been used for some time for the purposes alleged in the complaint; and the plaintiff's intestate had been employed a long time, as his widow testified. There was no allegation in the complaint that such a plank, if it had been sound and well secured at the ends, would not have been a proper and safe appliance for the purposes for which it was used. Jambs were prepared to receive the plank, and it generally stayed in jambs, and when it stayed in the jambs it could not slip. It seems from the evidence, therefore, that the defendant furnished the proper appliances to enable the employees of the boat to pass safely over the hold, but that the plaintiff's intestate misused them. The witness, Whedbee, said, "It seemed he (intestate) put the plank out to reach up for something." If any other person, however, than the intestate, had moved the plank from the jambs, the intestate would have used it in its misplaced position at his peril, under the facts in this case. The doctrine of the assumption of risk does not arise in this case; for, so far as the evidence discloses, the defendant furnished proper appliances for the plaintiff's intestate to do his work with safety. The trouble was that he did not use them as he should have done.
(35) No error.