Opinion
(Filed December 17, 1901.)
1. NEGLIGENCE — Complaint — Demurrer.
A complaint alleging that the person injured was ordered by the railroad company to unload freight from a car and while doing so, the car was put in motion, and the person injured in attempting to escape from the moving car, states facts sufficient to constitute a cause of action.
2. CONTRIBUTORY NEGLIGENCE — Complaint — Demurrer — Answer.
The question of contributory negligence can not be raised by demurrer.
3. CONTRIBUTORY NEGLIGENCE — Questions for Jury — Questions for Court.
Under the facts set out in the complaint in this case, it is a question for the jury whether the person injured was guilty of contributory negligence.
ACTION by J. F. Smith against the Southern Railway Company, heard by Judge W. B. Council, at May Term, 1901, of the Superior Court of ALAMANCE County. From judgment for the defendant, the plaintiff appealed.
C. E. McLean, for the plaintiff.
F. H. Busbee, and A. B. Andrews, Jr., for the defendant.
COOK, J., dissenting.
The effect of the demurrer is the admission of the facts stated in the complaint and in the light most favorable to the plaintiff. The plaintiff, an employee of the Elmira Cotton Mills Company, went to the depot and warehouse of the defendant, in Burlington, with the team of the Cotton Mills Company, for the purpose of receiving a consignment of goods belonging to his employer. He was told by the defendant's agent at the depot to get the goods from a car which was detached from the engine, and from other cars, and standing on a siding next to the platform of the freight depot. While so employed, he suddenly, no notice having been given him, discovered that the car was in motion, and in looking out saw that the car was attached to a train of cars and an engine and moving, and to prevent his being carried off he stepped, while the train was slowly moving, upon the platform, a space of about fourteen inches, and in so doing his leg was broken.
The negligence which the plaintiff charges upon the defendant is the moving of the car in the manner described by the defendant without first having given notice of its intention to do so to the plaintiff, and after having directed him to enter the car for the purpose and under the circumstances alleged in the complaint.
We think that his Honor committed error in sustaining the demurrer. The defendant owed the plaintiff, under the facts of this case, as shown by the complaint and the demurrer, the duty to make him as secure from harm while he was unloading the freight from the car as if the goods had been in the warehouse. Probably it was a saving of labor and expense in having the goods unloaded from the car. The defendant owed to the plaintiff, under the circumstances, the duty not only to protect him from harm to his person, but to protect him from anxiety and dread concerning his own personal comfort and the safety protection of his team. Owing him, then, this duty, they should have notified him of their intention to move the car, so that he could have gotten out without harm to himself, or anxiety or dread concerning his personal comfort and the safety of his team.
The injury can not be regarded as the result of an unavoidable accident. It was neither "an event from an unknown cause," nor "an unusual or unexpected event from a known cause," It is exactly what might have been reasonably anticipated by the defendant — all the facts stated in the complaint being admitted to be true so far as the case in its present shape is concerned.
The main contention presented by the demurrer is, of course, the one that the facts set forth in the complaint do not constitute, in law, negligence on the part of the defendant; but there is also presented the view of the contributory negligence of the plaintiff, although the words "contributory negligence" do not appear. That defense must be pleaded by way of answer, and not by demurrer. In view of the probable course of this case, it is proper for us to add that upon the facts set out in the complaint, it could not be held as a matter of law that the plaintiff contributed to his own injury. Different views of that matter could be reasonably entertained by disinterested persons; and the jury must decide whether the plaintiff, under all the circumstances, acted with ordinary care, as a reasonably prudent man would have done under all the circumstances.
Error.