
    ALFRED BLOXHAM v. THE STAVE AND TIMBER CORPORATION, M. E. GOETZINGER, et als.
    (Filed 20 September, 1916.)
    1. Master and Seryant — Railroads—Negligence—Evidence—Trials—Questions for Jury — Instruction.
    There was evidence tending to show that the plaintiff, the manager of the defendant timber corporation, was on a logging train of defendant, in pursuance of his duties, and was injured by a tree, which had been cut by the defendant’s other employees, falling upon the flat car on which he was riding at a speed of 5 miles an hour; that the employees had been instructed by him to be careful in cutting trees along the logging right of way, and that the engineer could have seen the tree falling, had been previously instructed to look for such dangers, and had been warned thereof in time to have stopped the logging engine on this occasion and avoid the injury; and there was evidence per contra, and further evidence that the tree would not have fallen on the train except for a current of wind which diverted it from its downward course to the tops of smaller trees, and thence upon the car. Held, the question of the defendant’s negligence and its proximate cause was properly submitted to the jury. The charge in this case is approved.
    2. Same — Prior Admissions.
    Where there is evidence that the plaintiff has sustained a serious physical injury proximately caused by the defendant’s negligence, and also that soon thereafter, while greatly suffering, he had made a statement exonerating the defendant from blame, it is for the jury to decide, upon the conflicting evidence, as to the defendant’s actionable negligence, and not for the court to decide as a matter of law whether there was such negligence.
    8. Railroads — Logging Roads — Master and Servant — Assumption of Risks— Statutes — Fellow-servant.
    The common-law doctrine that an employee assumes the risk of injury from the negligence of a coemployee in the course of his ordinary employment, etc., has been changed by statute in its application to railroad companies, including logging roads operated by steam and other like power, and extends to an injury received by a manager or superintendent from the negligent acts of a subordinate employee. Revisal, sec. 2646.
    4. Negligence — Evidence—Proximate Cause — Vis Major.
    The plaintiff, an employee of the defendant, was injured by a tree falling upon him as he was riding on the car of defendant’s logging road in the performance of his duties, and there was evidence that a change of wind liad deflected tlie tree from its expected course, so that it struck the tops of smaller trees and thence fell upon the plaintiff. There was further evidence that- the engineer of defendant’s ’logging train should reasonably have seen the danger in time for him to have stopped the train and avoided the injury, after the course of the falling tree had been unexpectedly deflected. Held, the proximate cause of the injury depended upon whether the engineer had been negligent in this respect, and, if so, the change of the wind would be the remote cause, and the doctrine of vis major is not applicable.
    5. Evidence — Negligence—Sudden Peril — Rule of Prudent Man.
    Where the negligent act complained of in an action for damages for a personal injury has been done by the plaintiff’s coemployee, under circumstances of peril to himself, the law requires of such employee that 'he exercise only that degree of care which a man of ordinary prudence would have exercised under the same circumstances, making proper allowance for his excitement, terror, or acts done for self-preservation.
    6. Appeal and Error — Assignments of Error.
    Exceptions taken for the first time in the assignments for error are too late, and will not be considered in the Supreme Court.
    7. Evidence — Pleadings—Former Action — Parties—Declarations.
    Allegations made in the pleadings filed by a party in a former action are admissible in the present one as evidence of his declarations, though the parties are not the same, when they are material and otherwise competent.
    8. Evidence — Letters—Trials—Questions for Jury.
    In this case it is held that a material and relevant statement made by the defendant was properly admitted in evidence, subject to contradiction by direct or circumstantial evidence. It was for the jury to determine, in the present state of the evidence, whether there had been any substantial change in the relations of some of the defendants to the property and the business in which the plaintiff was employed at the time of injury which relieved them from liability.
    Civil action, tried before Bond, J., and a jury, at January Terra, 1916, of "WASHINGTON.
    Plaintiff brought this suit to recover damages for personal injuries to himself which, he alleges, were caused by defendant’s negligence in permitting a tree to fall upon him while he was riding on one of the flat-cars of its logging road in the discharge of his duties as its superintendent. We may well adopt, for the sake of deciding the case, the statement of some of the principal facts as contained in the brief of defendant’s counsel, with quotations therein of a part of plaintiff’s testimony, as follows :
    “The defendant Stave and Timber Corporation was operating in a swamp in Washington County, getting logs off by use of a lumber road. The plaintiff was employed at a salary of $3,250 per year to supervise, manage, and control all its logging operations, and contracted to render to tbe defendants the ‘best of his ability and experience necessary and proper thereto.’ He employed all the hands, and their work and operation were directly and exclusively under his control. The work consisted of felling trees- in the forest, cutting them into logs, constructing railroads, operating trains of cars on them for hauling the logs out, and shipping by the railroad to Norfolk. On the morning of the accident plaintiff directed his engineer to carry him and Mr. Crane into the woods on the train composed of the engine and one flat-car, he and Crane riding standing on the flat-car next behind the engine. On the return trip the train passed 140 feet from where two woodsmen were felling a tree. The train was moving at the rate of about 5 miles per hour. This tree was being felled nearly parallel with the track, but in its fall was caught and diverted by a gust of wind, lodged on the boughs of standing trees, rolled to the track and fell with its topmost boughs a few feet across the moving engine, and by the motion of the train plaintiff was swept by the limbs of the tree off the car and injured. There was no train crew except the engineer.
    “In describing the course of the tree and his own conduct, plaintiff says:
    “ ‘It was a funny falling tree. It made several dives, and that is the reason I did not make preparation to leave the ear. . . . Some of the other trees were between the place where this tree stood and the railroad track.’
    . “Bloxham did not think of moving or getting off the car until the tree had changed its course at least twice, first on account of being caught in a gust of wind; second, by striking the boughs of another tree. He testified in this connection: ‘It was hard to tell which way it was going to fall until it got down in such a distance that it was too late for me without jumping off the side of the car.’ In speaking of when he began to move, he said: ‘I say I saw it 10 or 15 feet above the car, falling towards the car, and I rushed towards the tail end of the car.’
    “On cross-examination, Mr. Bloxham testified: ‘I said that I realized nothing until I heard some one make a scream or an alarm of some kind which indicated trouble to me. Then I looked up and saw the tree on its way to the ground. I do not know what it was, whether the wind, or what it was, that caught it and turned it towards the track, but the impression seemed to be that it was the wind that did it.’
    “Again, on redirect examination, he .said: ‘The tree looked to me as if it was falling not towards the track anyway. Suddenly it seemed to take a whirl and come diagonally across towards the track. It seemed to strike some trees and bounce back.’
    “The engineer was in his cab, covered above and inclosed except by the windows. -Plaintiff, standing up, uncovered, and with his view unobstructed, looking at the forest about him, heard a voice from the front of the locomotive. Looking up, he saw the tree falling in a ‘funny’ way. It made several dives, and that is the reason he didn’t make any preparation to leave the car. It was hard to tell which way it was going to fall until it got down in such a distance, and then it was too late for him to jump without jumping off the side of the car. At this time the tree started to roll, and then struck in the branches of other trees and rolled. There is no allegation of negligence as to the felling of the tree.”
    This is defendants’ statement:
    There was evidence on the part of the defendants tending to show that the engineer was not in a position to see the tree from the engine as well as the plaintiff could from the flat-car, and that he could not have stopped the engine and car after he saw or could have seen the danger, in time to have prevented the injury, as he was sitting in the cab of the engine with his view obstructed by the roof and sides of the cab, his only means of observation being the windows; and there was further testimony from him that he had no time to stop the engine after he saw that it was falling, and that as soon as he saw it he did all that could be done to cut off the steam and stop the engine; that he had only a very few seconds to act, and that the engine was stopped'as soon as possible by the exercise of care on his part.
    The plaintiff, in his own behalf, testified, as stated in the charge with substantial correctness, as follows:
    “In February, 1914, I was working on this 4,000-acre tract for the Stave and Timber Corporation, engaged in having logs cut for them; and I was down here every week. The contract between me and Arbuckle Bros, gave me $3,250 a year. I was hurt 4 February, 1914, on the 4,000-acre tract, on defendant’s logging road. „ There was one locomotive and flat-ear, and no crew on the engine or car except one engineer. The accident happened on the return trip. I and Mr. Crane were standing on the flat-car; some one began hollering, and I knew that something was wrong. I threw my eyes up and saw a tree falling. I was then 75 feet from it; glanced up ahead and through the trees. The tree was 14 inches big. I'saw it 10 or 15 feet above the car, and then rushed towards the tail end; the tree caught me as it fell across the car; train didn’t stop; no aiivbrakes were put on it; don’t know if any steam-brake was applied; I had nothing to do with selecting engine or the cars; I used what was furnished; I gave the engineer orders often to look out for falling trees; I told the foreman to be careful about cutting logs; the engineer could have stopped in 20 feet.” And again: “I made a request for an engine for a standard-gauge road that had a capacity to haul five to seven cars at one load. I and Folger talked about necessary machinery; I don’t remember saying that I didn’t name them. Tbe engineer was acting under my order to carry me down to a particular place when tbe trip was being made. I don’t tbinb tbe tree, if it fell as it started, would bave crossed tbe track. Tbe impression of tbe others there was that tbe wind whirled it. I believe that was tbe view that they took of it. It bit another tree falling. I guess tbe tree was cut 40 feet from tbe track. I did not see that stump. I yelled when I saw tbe tree coming. Tbe engineer was in as good position as I was to see tbe tree when I first saw it. I bad no time to give anybody orders. He bad time to stop the' engine, or reverse tbe engine. It was a minute or two — I would place it at two minute.s.” Tbe witness then stated that be was estimating tbe time, and it may not be accurate. Questioned by defendant’s counsel as to what be said when be was hurt, and as to whether be did not admit that tbe injury could not bave been avoided and that tbe engineer was not to blame, be said that be could not remember about it, as be was then suffering from bis injuries, which were very severe, and that “be did not think it fair to ask a question of that kind when be was in such a condition at that time, and that be would not swear whether be did or did not make tbe statement.” There bad been evidence that just after be was injured tbe plaintiff had stated that no one was to blame for tbe accident, and told tbe engineer that be was not responsible for it.
    On redirect examination, plaintiff further testified: “It certainly did seem to whirl. I quickly saw tbe danger when I saw tbe tree. My God! I wanted to get off. If tbe engineer bad stopped as soon as be could bave seen tbe tree, there would bave been no danger. I thought a gust of wind changed its course, but that is simply a guess. I did all I could.' I was 10 or 12 feet from tbe engineer. I don’t know bow to handle an engine. I could not bave given any order to tbe men cutting tbe tree.”
    There was other evidence tending to corroborate, more or less, tbe plaintiff' and tbe engineer as witnesses.
    Tbe court, at defendant’s request, instructed tbe jury as follows:
    “1. If you find from tbe evidence that tbe engine and car were not properly equipped, but further find that by reason of tbe fact that tbe train was so light, or was moving so slow, that better brakes were not necessary, and that tbe train, as it was running, could bave been stopped as quickly as tbe conditions required, and as it was necessary under tbe circumstances, with tbe brakes and equipment it did bave, then tbe failure to have different brakes did not as a matter of law produce tbe injury, and if you find no other negligence proximately causing tbe injury, you should answer tbe first three issues ‘No.’
    “2. If you find from tbe evidence that tbe plaintiff did not bave tbe selection of tbe engine and car, but that they were selected and sent out to him by tbe defendant, yet if you further find that tbe plaintiff, as supervisor of the woods and works, went on using them, knowing of their defect of equipment, if any, or having opportunity in the exercise of reasonable care to know of them, even though this defect caused the injury, you should answer the fourth issue ‘Yes/
    “3. Plaintiff contends that the defendants were negligent in that the engineman failed to stop the train as quickly as he could and should have done, and that this negligence was the proximate cause, among other things, of the injury. In this connection I charge you that it was the duty of the engineman at all times to keep a diligent lookout in front of his engine, and in the scope and observation of that lookout to see and observe such things as reasonably and naturally came within, or should have come within, his view, and to govern and control his engine in respect to the same; and if you find from the evidence that in the exercise of this duty he did not see and could not, by reasonable care, have seen the tree as it started to fall and was falling, his failure to see it and to stop his engine on account of it was not the proximate cause of the injury, and as to this feature of the case — that is to say, in the absence of other negligence proximate to the injury — you will answer the first three issues No.’
    “4. The defendants contend that the engineman was keeping a lookout in front of his engine, and in this lookout and view it was not possible for him to have seen the top of the tree at the time it started to fall, or while it was falling, because of the cab on the side and above him, and that he did not see it, and, therefore, did not and could not see the impending danger; and I charge you if you find this to be the fact, you will answer the first three issues Nod
    “5. The defendants contend further that even if the engineman had seen the tree when it started to fall, and while it was falling, it was impossible for him to have stopped his train, whatever appliances he might have had on it, before the tree fell on the train; that it was all done so quickly that it was impossible to escape the tree, and that if he had stopped the train suddenly at the time he saw, or by reasonable diligence could have seen, the tree falling, it would still have fallen on the train. In this connection I charge you that if the engineman saw the tree falling at such a time, in such a condition, and under such circumstances as caused him to believe, as a reasonable man, that if he brought the engine to a sudden stop it would fall on the cab and injure him, it was not his duty to stop the train and receive the injury himself under such circumstances; and the accident was what the law calls an unavoidable accident, from which no liability flows; and if you find these to be the facts, you will answer the first three issues No.’
    “6. It was the duty of the engineman to exercise such care as a reasonably careful and prudent man would have exercised under the same circumstances, and no more; and if he saw the tree falling so near to tbe engine and so fast that as a reasonably prudent man it appeared to him that if he stopped the engine suddenly he would receive an injury himself, and in the exercise of proper care could not have seen it sooner; and if the engineman knew, at the time, that the plaintiff was behind on an open car, and had as good and sufficient view of the tree and opportunity to see and appreciate the danger as he had, and by reason of the slow movement of the train could jump off and protect himself, it was not his duty to bring the train to a sudden stop under circumstances that led him to believe he would receive the injury himself and was more likely to receive it than the plaintiff; and if you find this state of facts to have existed, and no other cause proximately produced the injury, you will answer the first three issues ‘No.’
    “7. If the engineman was exercising reasonable care in looking out for danger in front of him, and did not see the tree until he had- good reason to believe, and did believe, that the tree would fall on his cab and injure him if he came to a sudden stop, he had the right, in the exercise of his own right of self-preservation, to refuse to stop the engine, and it was not his duty to do so; and if this state of facts proximately caused the injury, you will answer the first three issues ‘No.’ ”
    The jury under the evidence and charge of the court returned the following verdict:
    1. Was the plaintiff Bloxham injured by the negligence of defendant The Stave and Timber Corporation, as alleged in complaint? Answer: “Yes.”
    2. Was the plaintiff Bloxham injured by the negligence of the defendant M. E. Goetzinger, as alleged in complaint? Answer: “Yes.”
    3. Was the plaintiff Bloxham injured by the negligence of the defendants Arbuckle Brothers, and the individuals composing said firm, as alleged in complaint? Answer: “Yes.”
    4. Did the plaintiff Alfred Bloxham by his own negligence contribute to and cause the injuries he received, if any? Answer: “No.”
    5. Were the acts, if any, which produced injury to plaintiff Bloxham caused by risks which Bloxham under his employment agreed to assume? Answer: “No.”
    6. What amount, if any, is the plaintiff Bloxham entitled to recover of defendants by whose negligence he was injured as alleged ? Answer: “$8,000.”
    Judgment was entered thereon, and defendant appealed.
    
      Winston & Biggs, B. It. Baird, Jr., W. M. Bond, Jr., and Bari M„ White for plaintiff.
    
    
      Ward & Grimes, Starlce, Venable & Siarhe for defendants.
    
   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.  