
    W. G. LASSITER v. SEABOARD AIR LINE RAILWAY.
    (Filed 14 April, 1909.)
    Railroads — Unloading Cars — Master and Servant — Accident—Damages.
    When it appears that plaintiff was injured while unloading rails from a flat car, caused by a rail bounding back in an unusual and unexplained way and striking him; that the method employed for unloading was considered the safest way; that the car had been properly loaded with the rails, and sufficient help furnished in unloading them, the injury was an accident, and the plaintiff cannot recover for consequent damages.
    ActioN tried before Webb, J., and a jury, at November Term, 1908, of Chatham.
    Action for personal'injury, alleged to have been sustained by reason of defendant’s negligence. The evidence tended to show that-plaintiff was, by direction of defendant’s superintendent or road master, engaged, with other employees, in unloading iron rails from a flat car; that the rails were laid upon the car in the usual way, and that upon either side of the car “fish bars,” or “angle plates,” about eighteen inches long,*were used as standards. They were put in the “stirrups,” or “cuffs,” on the side of the ear, for the purpose of holding the standards. Some of the rails had been taken up from the cross-ties and were being used to build a siding. The “fish bars” were suitable for standards and “constantly used for that purpose.”- The rails were loaded in the usual way. There were several cars of rails. In unloading the cars, other than the one on which plaintiff was injured, the standards, or “fish bars,” were removed and the rails thrown upon the ground. When the hands undertook to unload tbe car upon wbicb tbe plaintiff was injured, it was found tbat tbe rails pressed against tbe standards, so tbat they could not be removed. Tbe plaintiff and other bands were directed to unload by raising one end of tbe rail, lifting it over tbe standard and letting it fall to tbe ground, and then lifting tbe other end over in tbe same manner; or, as plaintiff says, tbe order was, “Pick up tbe end of tbe iron and throw it off.-” He says tbat, as he did so, “it bounded some way or other and dashed back to tbe car.” In reply to tbe question, “When you picked up tbe end of tbe rail to toss it over, it caught at tbe other end and flew back — is tbat tbe way you described it?” “It bounded and flew back. * * * I was not thinking about it; I was just trying to carry out orders. I thought it would go to the ground.”
    Mr. Cain, tbe section master, a witness for plaintiff, says that. Captain Tussey, tbe road master, ordered tbe bands to throw the rails off. “He said be could not get tbe standards out until after be got tbe rails from around tbe standards; tbey were piled against tbe standards.” This witness said tbe car was loaded in tbe usual way; tbat tbe fish bars made good standards — were constantly used for tbat purpose; that be bad unloaded rails in tbat'way before, and bad often seen it done; they bad thrown out two or three rails before tbe plaintiff, was injured. Tbe .rail struck plaintiff’s leg as it “bounded back,” and inflicted tbe injury for wbicb be sues.
    Tbe foregoing is tbe substance of tbe evidence on behalf of tbe plaintiff in regard to tbe way in which be received the injury. He alleges tbat defendant was negligent in several respects. His Hofltar instructed tbe jury tbat there was no evidence tbat tbe car was not properly loaded or tbat there was not a sufficient number of bands for tbat purpose. Tbe defendant requested bis Honor to instruct tbe jury, “From all of tbe evidence in this case, tbe cause of tbe injury was an accident, and tbat tbey will answer tbe first issue No.’ ” This was refused, and defendant excepted. His Honor instructed tbe jury tbat if tbey found that, as tbe plaintiff picked up tbe rail to toss it off tbe car, tbe other end of tbe rail was 'caught or bung, and if tbey should further find tbat Cain or Tussey knew tbat tbe rail was caught or hung, or that they could have known by observation or ordinary care that it was caught, and failed to do so, and, after knowing it was caught at the end, it was tossed over and rebounded, and, by reason of the fa'ct that it was caught before it was picked up or after it was picked up, it hurt plaintiff,. they would answer the first issue. “Yes.” Defendant excepted. There was a verdict for plaintiff. Judgment and appeal.
    
      Long & Long for plaintiff.
    
      Murray Allen and Hayes & Bynum for defendant.
   Connor, J.,

after stating the case: The defendant lodged several exceptions to his Honor’s refusal to give special instructions, and to the instructions given, but error is assigned only for the refusal to nonsuit and, what is equivalent, to instruct the jury that the injury sustained by plaintiff was the result of an accident. The uncontradicted evidence is that the rails weré-loaded in the usual way, and that the “fish bars” were suitable and usually used for standards. ' His Honor instructed the jury that there was no evidence that the cars were not properly loaded or that there were not a sufficient number of hands to assist in unloading. It is evident that plaintiff and Mr. Gain, who helped him, were able to and did lift one end of the rail over the standard. It does not appear that the fact that the standards were' not removed was the proximate cause of the injury. We do not find any suggestion in the evidence that the method of handling the rails was unusual or dangerous, provided a sufficient number of hands were furnished to lift them over the standard. His Honor eliminated every suggestion of negligence, other than the question whether Tussey, who gave the order, and Cain, who assisted the plaintiff in executing it, saw or could have seen by the exercise of ordinary care that the rail was hung. "We see no ground for exception to the measure of duty imposed upon them. It was undoubtedly the duty of the person giving the order to unload the rails to use ordinary care to see that they could be handled with safety, in. the manner directed by him. There is no evidence or suggestion that either of them did in fact see that the rail was “hung,” nor does it very clearly appear how it was “hung.” We are unable to find any evidence that there was anything in the position of the rail to suggest to them that the end lifted over the standard would not, as others had done, similarly situated and handled, fall to the ground. All of the witnesses concur in saying that the rails were loaded in- the usual way; two or three had been unloaded without accident. The method pursued in unloading was not unusual; therefore unusual results could not be reasonably anticipated. We are unable to find any suggestion in the evidence explaining why the end of the rail, when lifted over the standard, rebounded. We, of course, know that there was some obstruction to the anticipated action of the other end of the rail which should and, but for some obstruction, would have moved upwards as the end next plaintiff went to the ground. The plaintiff, in answer to the question, “What caused it to spring back ?” said: “I suppose it got caught at the other end, or some way; it got down so quick it bounded in some way and flew back and struck me.” He further says: “I could not say how it was done; it came back with pretty smart force — very quickly.”

In Keck v. Tel. Co., 131 N. C., 277, where it appeared that there was nothing unusual in the conditions under which the work was done — no lack of hands and “no mishap or danger anticipated” — the injury was held to be the result of an accident, which is “an event from an unknown cause, or an unusual and unexpected event from a known cause — chance, casualty.” Crutchfield, v. Railroad, 76 N. C., 322. In Martin v. Manufacturing Co., 128 N. C., 264, it is said: “Injuries resulting from events taking place without one's foresight or expectation, or an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected, must be borne by the unfortunate sufferer.”

In Bryan v. Railroad, 128 N. C., 387, Douglas, J., said: “The employer is not responsible for an accident simply because it happens, but only when he has contributed to it by some act or omission of duty.” In this case a new trial was ordered, with the suggestion that a nonsuit should have been granted. Alexander v. Manufacturing Co., 132 N. C., 428; Frazier v. Wilkes, 132 N. C., 437. While we regret the painful injury which the plaintiff sustained, we are unable to see how, by reasonable human foresight or precaution, the eccentric course of the rail could have been anticipated and therefore prevented. We cannot think that it was negligent to pursue a course which none of the witnesses suggest was either unusual or hazardous. Mr. Tussey says that he had been at that kind of work fourteen years; that he had ample force'. “It is always customary to take hold of the rail and throw one end off to prevent accident. Some men will throw quicker than others and let the rail fall down, and for this reason we have adopted the plan to throw one end off at the time. It makes it much safer than trying .to throw the entire rail off. It was the method adopted by all of the roads that I have worked for in unloading rails.” W. C. Wooten, who was section foreman and present when the accident occurred, says of the method of unloading.: “It is safer, one end at a time. If you try to pick up both at the same time, sometimes the rail will turn and catch your fingers.” This is.not contradicted, and is consistent with plaintiff’s evidence. We think that his Honor should have granted the motion for non-suit. Upon the whole of the evidence the plaintiff’s injury was the result of an unforeseen and unavoidable accident.

There is

Error.  