
    SMITH v. SOUTHERN RAILWAY CO.
    (Filed December 17, 1901.)
    1. NEGLIGENCE — 0omplaint—T>emurrer.
    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 fQr 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.
    Cook, J., dissenting.
    ActioN by J. E. Smith against the. Southern Railway Company, beard by Judge W. B. Council, at May Term, 1901, of tbe Superior Court of Alamance County. Erom judgment for tbe defendant, tbe plaintiff appealed.
    
      C. E. McLean, for tbe plaintiff.
    
      F. E. Busbee, and A. B. Andrews, Jr., for tbe defendant.
   MoNtgomeet, J.

Tbe effect of tbe demurrer is tbe admission of tbe facts stated in tbe complaint and in tbe light most favorable to tbe plaintiff. Tbe plaintiff, an employee of tbe Elmira Cotton Mills Compnay, went to tbe depot and warehouse of tbe defendant, in Burlington, with tbe team of tbe Cotton Mills Company, for tbe purpose of receiving a consignment of goods belonging to bis employer. He was told by tbe defendant’s agent at tbe depot to get the goods from a car which was detached from tbe engine, and from other cars, and standing on a siding next to tbe platform of tbe freight depot. While so employed, he suddenly, no notice having been given him, discovered that tbe car was in motion, and in looking out saw that tbe car was attached to a train of cars and 'an engine and moving, and to prevent bis being carried off be stepped, while the train was slowly moving, upon tbe platform, a space of about fourteen inches, and in so doing bis leg was broken.

Tbe negligence which tbe plaintiff charges upon tbe defendant is tbe moving of tbe car in tbe manner described by tbe defendant without first having given notice of its intention to do so to tbe plaintiff, and after having directed him to enter the car for tbe purpose and under tbe circumstances alleged in tbe complaint.

We think that bis Honor committed error in sustaining tbe demurrer. Tbe defendant owed tbe plaintiff, under tbe facts of this case, as shown by tbe complaint and tbe demurrer, tbe duty to make him as secure from barm while be was unloading tbe freight from tbe car as if tbe goods bad been in tbe warehouse. Probably it was a saving of labor and expense in having tbe “goods unloaded from tbe car. Tbe defendant owed to tbe plaintiff, under tbe circumstances, tbe duty not only to protect him from barm to bis person, but to protect him from anxiety and dread concerning bis own personal comfort and tbe safety protection of bis team. Owing him, then, this duty, they should have notified him of their intention to- move tbe car, so that be could have gotten out without barm to- himself, or anxiety or dread concerning bis personal comfort and tbe safety of bis team.

Tbe injury can not be regarded as tbe 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 tbe defendant — all tbe facts stated in tbe complaint being admitted to be true so far as tbe case in its present shape is concerned.

Tbe main contention presented by tbe demurrer is, of course, tbe one that tbe facts set forth in tbe complaint do not constitute, in law, negligence on tbe part of the defendant; but there is also presented tbe view of tbe contributory negligence of tbe plaintiff, although tbe words “contributory negligence” do not appear. That defense must be pleaded by way of answer, and not by demurrer. In view of tbe probable course of' this case, it is proper for us to add that upon tbe facts set out in tbe complaint, it could not be held as a matter of law that tbe plaintiff contributed to bis own injury. Different views of that matter could be reasonably entertained by disinterested persons; and the jury must decide whether tbe plaintiff, under all tbe circumstances, acted with ordinary care, as a reasonably prudent man would have done under all tbe circumstances.

Error.

Cook, J.,

dissenting. I do not tbink tbe facts stated in' the complaint show negligence upon the part of defendant company, and therefore see no- error in his Honor’s sustaining the demurrer. . The facts are as follows: “That on December 28, 1897, the plaintiff, at the time in the employment of the Elmira Cotton Mills Company, went to the freight depot of defendant, at Burlington, N. C., the lessee as aforesaid, for the purpose of getting goods and freight consigned to his employers; that upon inquiry he learned from defendant’s agent that the goods for which he had come were not in the depot, but were still in one of defendant’s freight cars, which was moved to the siding nearest the platform, and the engine detached; that thereupon, at the invitation and under the direction of, and accompanied by, defendant’s agent, he entered the car and was proceeding to unload the goods, and when he, assisted by the agent, had unloaded a few bales of said goods, the agent left, directing him to proceed and finish the unloading; that in unloading he would throw two or three bales from the car on the platform and then go on the platform and place these bales on a truck and roll them to the opposite side of the depot, where his horse and wagon were, and then place them on the wagon, and then returning would enter the car and throw out more bales of goods; that while he was in the car unloading the last of the bales that he intended to unload, he suddenly found that the car was in motion, and upon looking out found that it was attached to a train of cars, and apprehended that he was attached to a regular train; and knowing that he was being delayed in delivering the goods to his employers, and thereby delaying the operation of their mill, and knowing that he was leaving his horse and wagon standing at the depot, that before said train had attained any speed, and while it was slowly moving by the depot, he attempted to' step, from the car, in which he was, to the platform, a distance of about fourteen inches, and in such attempt he was thrown from the platform and had his right leg broken, to- his damage one thousand dollars. That said accident and damage were caused by the negligence of defendant’s servants in moving the car without first giving notice to the plaintiff, after having invited and directed him to enter the car for the purposes-aforesaid. Wherefore, plaintiff demands judgment for $1,000,” etc.

Eor what purpose the car was being moved, or to what, place it was intended to be carried, does not appear; nor did plaintiff inquire or endeavor to inquire. Having been invited or permitted to go into the car and unload the goods,, defendant company was under obligations, first, to do him no injury while in the car; second, to do him no injury while-carrying the goods out of the car; and third, to give him sufficient notice to safely get his goods and himself out of the-car, in the event that it was intended to carry the car to some other station before doing so.

As plaintiff was not injured by any act of defendant company while he was in the car, or while getting the goods out of the car, the first and second duties or obligations are not in controversy.

As to the third: It is not alleged (only apprehended) that it was the purpose to carry the car away from the depot, or that it was done. In the absence of such an allegation, we have no right to- assume it. Eor what purpose, or to what point the car was being moved, does not appear. If, in shifting its cars at that depot, or in placing other cars on the-siding, it'became, necessary to move that car, in which plaintiff was, to some other point, or to move it temporarily for the convenience of handling other cars, then it would not have been negligence for defendant company to have done so. Therefore, to move the car was not negligence; and as plaintiff was not injured by its “moving,” or on that account, defendant company can not be liable for tbe injury sustained. Had be remained in tbe car, be would not bave been burt; and bad defendant company’s train carried bim away, defendant would bave been liable for tbe damages resulting for carrying bim away from bis business and borse and wagon without giving bim notice of sucb purpose.

From the complaint, it appears that plaintiff “apprehended^ that tbe car was going to be carried away, and assumed that be could step off with safety. In bis assumption be shows be was mistaken, but is silent in bis pleading as to tbe correctness of bis “apprehension.” Whether he was injured by bis own mistake or bis own negligence is not' material to this decision; nor could we discuss tbe question of contributory negligence in tbe absence of sucb plea. Acts 1887, Chap. 33. So, tbe question of law raised by,the demurrer to tbe complaint is, whether tbe injury resulted from the negligence or breach of duty upon tbe part of defendant, as appears from tbe facts alleged by plaintiff. None appearing, it is our duty, as it was that of tbe Court below, to so bold.  