
    BRYAN v. SOUTHERN RAILWAY CO.
    (Filed May 30, 1901.)
    1. NEGLIGENCE — Master and Servant — Railroads—Personal Injuries — Evidence—Sufficiency.
    Tlie evidence in tins case is not sufficient to be submitted to jury on tbe question of negligence.
    2. NEGLIGENCE — Master and Servant — Railroads—Personal Inju-i ries — Assumption of Risk.
    
    An employee of a railroad injured while loading timber on a car by a piece of timber falling on bim, assumed tbe risk and is not entitled to recover tberefor.
    Clark, J., dissenting.
    ActioN by W. D. Bryan against the Southern Eailway Company, beard by Judge E. W. Timberldke and a jury, at March Term, 1901, of 'tbe Superior Court of Oiatawba County. From a judgment for 'tbe plaintiff:, 'tbe defendant appealed.
    
      Self & Whitener, and T. M. Hufham, for tbe plaintiff.
    
      Geo. F. Bason, for tbe defendant.
   Eueches, C. J.

Action for damages'. Tbe plaintiff belonged to wbat be called a floating squad or gang of bands on tbe defendant’s road. It seems 'that 'there were five of them belonging to this “gang,” and one Whitley is designated by tbe plaintiff as “boss” of tbe gang. At tbe time of tbe injury complained of, this squad, consisting of said Whitley, tbe plaintiff and three others, were engaged in loading a car of a construction train with tbe timbers of 'an old bridge at Third Creek. Among this timber was an old sill or stringer, eight inches thick, sixteen inches wide and 'thirty feet long; and in attempting to put tiiis piece of timber on the car tbe plaintiff was injured.

Tbe plaintiff’s account of tbe matter (and it is his testimony that is relied on to malee out tbe oaise) is substantially as follows: That after having loaded oithier timbers, snob as cross-ties, Whitley told them to' put this heavy piece on the oar; that they rolled if up the bank near tbe car and lifted one end on the oar; that one of the men (Signuam) putt a pieice of scantling on the car under the sill and the other end of the scantling on his shoulder, to hold that end of the sill on the car, until 'the other enid conld he raised up' anid put ou the oar; but by some means, while they were attempting’ to raise ■tire other end, Sigttnan’s scantling slipped, the en'd of the si'll on the ear slipped off and fell upon plaintiff and injured him.

It is contended on behalf of plaintiff that Whitley was “boss” of the squad; that he ordered the hands under him to put this sill on the car; that i-t was too heavy to' be handled with the force he had; that he should have known this, 'and it Was negligence in 'him to order them to' put it on tire oar, for which negligence the defendant company is liable.

The plaintiff also contends that at the time the injury occurred, Whitley was on the car, when he should have been on the ground helping to' raise the sill, 'and in this he was guilty of negligence, for which 'the defendant company is liable.

It is also contended on the part o>f the plaintiff that he was unacquainted with such work; relied upon the judgment of Whitley, and for that reason wias not guilty of contributory negligence; and that the Court properly instructed the jury that he was not.

In 'answer, as we think, to Some of these positions, we quote from the plaintiff’s testimony as follows:

Questions, by plaintiff: “Describe exactly and correctly how it was that this tiling happened ? Answer’. “In noising tine timber, Mr. Sigmlan., whenever be raised one end, would put 'the scantling under it for us to raise the other end. The other men lifted this end up-, go-t away from it and fell back. I was the 'third man from the end. There were tw'o men between me and the end of the timber.”
Question. “How did you dome to be working for the road ?” Answer. “I hired to Mr. Whitley.”
Question. “What position -did he-hold?” Answer. “He Was boss of the floating gang of the Soulthern road.”
Question. “Who had charge of the force that day?” Answer. “Mr. Whitley.”
On cross-examination: Question. “You started to do it with the- crowd you had; you saw the size of it, and you and four other men tried to put that piece of timber on the car ?” Answer’. “Yes, sir.”
Question. “You thought you could put the timber up ?” Answer. “Yes, sir; I went to work a;t it because Mr. Whitley told me to.”
Quesltion. “Didn’t you think you could do it too; don’t put it all on Mr. Whitley because be is not here; didn’t you think you could do it?” Answer.* “Yes, sir; I thought we could put it up.”
Question. “What has been your means for making yonr living ?” Answer. “Oarpenter work.”
Question. “What wages were you able to command before receiving this injury? Answer. “$1.75 to $2.25 a day.”
Question. “I understand you to say -that you got $1.75 to $2.25 a day?” Answer. “I have got it, but not with that force.”
Question. “W'hat were you getting on that force ?” Answer. “One dollar a day.”

The defendant is not liable- for the negligence of Whitley as am alter ego if he was gu-illty of negligence, as there is no eidence that he had a right -to- discharge 'the plaintiff. Dob bin v. Railroad, 81 N. C., 446; Kirk v. Railroad, 94 N. C., 625; Mason v. Railroad, 111 N. C., 482. If tihiere was'negligence in one, it seeans to us tibere was negligence in all tibe gang and not in tibe defendant rolad. There is no evidence going to show but what five men were as many as: were needed to do Ube ordinary work this gang bad to do. If this piece of timber was too- heavy to- be handled by them, there is no evidence that the defendant knew it, or’ ought to have known it; nor chid the defendant know that they would undertake to put it on the ear. Besides, it was -no piece of machinery, about Which the plaintiff was not as good a judge as Whitley, or anyone else in the “gang.” The plaintiff admit® in Ms evidence that he thought they could put it on the car. And it seems they would have done so but for tli'e fact that Sigman’s scantling slipped, and the piece of timber they were trying to load fell.

We see no negligence in the matter, but, from plaintiff’s evidence, regard it -as one of those unfortunate accidents that happen, 'and will continue to happen, in the performance of any heavy work, and the plaintiff assumed ithe risk. And we are of the opinion that defendant’s motion to dismiss, under the statute, should have been allowed, and there was error in refusing the same.

Error.

Douglas, J.,

concurring.

I concur in the opinion of the Cfourt. Pure 'accidents can not be eliminated by law. All that the law has done is to' say that the employer shall exercise reasonable care to prevent accidents, and the courts, can hold him responsible only when he fails to exercise such care. The employer- is not responsible for an accident simply because it happens, but only when be has contributed to it by some act or amission of duty. I see no evidence fending to prove that the force of hands called the “-floating squad” was not sufficient for the ordinary w'ork tlia,t it was expected to do. To my mind, it makes no difference whether Whitley was a vice-principal or not, as I can mot say that he was directly responsible fox the accident. Eour men were told to load a piece of timber which they thought they could lift, and which it seems, they did lift, but -in some way let slip back. This was the sole cause of the injury. If the beam had been thrown back by some movement of the train over which these four men had nlo control, the ease would have been essecoiti-aily different.; hut no other act of negligence, if there was any negligence at all, seems to hav© intervened between the lifting of the beam from the ground and the occurrence of 'the injury. The plaintiff was a carpenter, and must have known something by experience of the weight of timber and of hlis capacity to. handle it. It is true he expressed some doubt., but this doubt was not sufficient to deter him from attempting it Or to cause any earnest protest on his part.

In the entire transaction I see only one of those unfortunate accidents, which, however much we may deplore, we are unable t:o remedy.

Clakk, J.,

dissenting.

The defendant, at the close of the plaintiff’s evidence asked that he he nonsuited, and excepted to its refusal. The Judge thought there was sufficient evidence to submit the issue to the jury, and the jury thought the evidence justified a verdict, which they rendered for the plaintiff. Por the purpose of the motion, the evidence must he taken as true and in the most favorable light for the plaintiff. Brinkley v. Railroad, 126 N. C., 91; Powell v. Railroad, 125 N. C., 370.

The plaintiff was hired by one Whitley on a force called the “floating gang” on defendant’s road, over which he was “boss.” H'e was the superior of plaintiff, whose orders plaintiff Was bound to obey.

At tb© time of the injury, the plaintiff and four others were engaged under Whitley’s control and supervision in loading timber on a gondola ear- at Third Greek. After loading some lighter material, snob as cross-ties and the like, Whitley ordered them to move and place on the oar a piece of heavy timber eight indies thick, sixteen inches wide and thirty feet long. The plaintiff had not been accustomed to handle such 'timber. Tie says he doubted if the force at hand could prat it on the dar, brait supposed that device or management would be used, or that more men would be called in. In fact, Whitley used only four of the five men in the squad, and at a critical moment, when extra force should have been used, the fifth man does not seem to have been called to aid, though he was on the car, and Whitley himself rendered no help. The timber Was rolled up to the car. When one end of the timber had been placed on the car^ one man with his ■hand-spike was left to hold it, and asi the other end was moved round and being lifted up, by its great weight it became uncontrollable, slipped down, and falling upon plaintiff, injured him in the manner complained of.

The defendant was bound to furnish a sufficient force to load the timber on the car, a duty which, it failed to perform. Whitley, seeing that the timber was so heavy that it had to be rolled up to the oar, if not negligent, would either have gotten more hands or at least should have called in the fifth hand, and have aided himself. But instead of that, he took the chances (or rather let plaintiff and three others take it), and gave orders to lift the timber. He ordered them into' danger, but did not share i’fc himself. He attempted to' use four men, when himself and 'another were present and might have prevented the accident. The plaintiff testified that it occurred because the timber was too large for the four men to control if. Whitley does not contradict this, and no other witness. This was gross negligence. The plaintiff says he Was not used to handling such timbeo.’, but thought it was so large that other ¡help would be given or advantage used. He was justified in so thinking, as Whitley and tibe other band were there, and could bave been used either directly or for tbe “advantage” w'bidh tbe plaintiff thought might lay in tbe power of Whitley to apply more mechanical device. It was “an accident” of course, as injuries from negligence always are, because it was unintentional; bub it was an accident which, according to above evidence, would not bave happened if Whitley, who, by defendant’s orders, wias in charge of the gang, had used the sis men he had, instead of putting only four on the work.

Under the Feiloiw Servant Act (1891, Private Laws, Ch. 58), if the plaintiff was injured by the negligence of Whitley, though he were merely a, feflloiw servant, the plaintiff could recover. It is immaterial, therefore, on the issue as to defendant’s negligence, whether Whitley bad the power to discharge the plaintiff or not.

There is mot the scintilla of any evidence shown or claimed as to contributory negligence by plaintiff, unless it be that he did not rely on bis own judgment as to the timber instead of obeying tbe orders of Whitley, under whose orders tbe defendant placed him to work. If thlalt wias not contributory negligence, there wias nothing to justify the submission of that issue to the jury, an’d there was no prejudice in refusing to submit it. It is only in that aspect that it is material that WhitLev was the vice-principal, giving orders for and in behalf of the company. His having the further power to discharge could only have been material to determine whether be was a fellow servant or not, prior to the Fellow Servant Act. It is immaterial here. The plaintiff testified that five men rolled the log to the car; that he 'and three others tried to put the log up; that the fifth man was somewhere on the oar, but it does not appear where, and Whitley did not help. Then he says if Sigman had “held on to his scantling and bad a onto or so, we corald 'have gotten it up.” This, two men being present and idle, was evidence of negligence (though "Whitley was no- more than a fellow servant) sufficient Ur go to the jury, anid as above shown there was no evidence of Contributory negligence.

In Hinshaw v. Railroad, 118 N. C., 1047, the plaintiff recovered for damages sustained in obeying instructions of a conductor because he was there to give instructions, though he had no power over Hinshaw. Here, the plaintiff was injured by obeying instructions of his “boss,” who was there for that purpose, and it is equally immaterial whether the “boss” could discharge him or not. It wlas not contributory negligence to obey such instructions.

Tire order was not plainly dangerous to the plaintiff, and if he had not obeyed it, he would doubtless have lost his job. He Was justified in trusting to the judgment and care of defendanf’s agent that he would not be subjected to unnecessary risk, and that he Was so subjected the jury find was due to that agent’s negligence. A hand, under such circumstances, when danger is not patent, is not called upon to dispute the orders of his superior and be pub in the attitude either of assuming all responsibility for injury or losing Ms means of livelihood. The duty of care is upon, the employer, who should have prudent 'and well-informed supervisors of their work, and if, in a case of thisi kind, the accident is Caused by the carelessness or ignorance of the agent, who orders four men to lift a stick of timber and put it on a oar, wMch rolls back and upon them because (as plaintiff testified) four men were insufficient to do. the work, tire fault is the miscalculation of the defendant’s agent, and not in the miscalculation of the employee, who is not to be held to be wiser, at his peril, than the employer’s agent and therefore guilty of the injury, because he did not at once throw u,p. his employment.

Those who. are in receipt of independent incomes are not always advertent to tibe compelling power of tihiaifc necessity which malees otiber mem work from sun to sun for a bare pittance. Often, sneb men have wives and little 'ones dependent upon them. Eor a laborer to- -throw up employment, be-oause in bis estimate a stick of timber is too heavy for four men, when the '‘'boss” thinks it is not, would not only subject him to the probability of immediate lack of food and shelter, but if such a critical characteristic became knoiwn, it might tender it difficult for him to get other similar employment. A laborer -can not always afford such independence, even if he should possess the capacity to judge of the method of doing the work better than the employer’s agent. He is not to be put to such election — certainly not, unless the danger was more palpable and certain than in this case. Even Shylock had the justice to observe (when it touched himself), “You do take my life, when you do take the means- by which I do live.” A day laborer can not afford to give up his work upon which he subsists, because he fears, or by calculation might know, that a too heavy burden is assigned to- tike squad in which he is working. The care of calculation is upon the employer, and the responsibility for the miscalculation and injury Lies there.

There w-as no error in not submitting the second issue as to contributory negligence. If the response to the first issue had been that the defendant was not negligent, the case would have ended; and, upon the edreumatances in this case, the contributory negligence of -the- plaintiff, if any, -was necessarily considered in the inquiry whether the defendant was negligent. The sole inquiry was whether the proximate cause was 'the negligence of defendant or not. Short v. Gill, 126 N. C., 807. Besides, if there had been a second issue, the Court would have had to- tell the jury there was mo- contributory negligence shown. Haltom v. Railroad, 127 N. C., 255.  