Rushing v. Seaboard Air Line Railway Co. , 149 N.C. 158 ( 1908 )

DEFENDANT'S APPEAL. Action of damages for injuries caused by defendant's negligence. Under orders of the foreman the plaintiff and three others took in their hands a stick of lumber, which was lying partly submerged in the water, and walked sideways with it, and while trying to climb up a five foot embankment the plaintiff stumbled and fell. The stick of timber fell on him, injuring him. Plaintiff testified that the defendant had for years used lug hooks in such work, which grasp a stick of timber; that if the lug hooks had been used on this occasion he would have walked forward, instead of sideways, at some distance from the stick of timber, and could hardly have stumbled and (160) fallen; and if he had, the lug hooks would have held the timber so that it would not have fallen on him at all; that he asked the foreman if they should use the lug hooks with that log, but the foreman told them not to do so, but to carry the log in their hands.

The defendant's exceptions cannot be sustained. It was competent for the purpose of showing his deceased earning capacity to ask the plaintiff what wages he received before the injury, and what he was receiving, in his condition, at the time of trial. Wallace v. R. R., 104 N.C. 442. It was also competent, to negative contributory negligence, to ask him if he caused the stick of timber to fall on himself.

The motion to nonsuit was properly denied. The case was properly one for the jury.

The defendant having offered in evidence part of paragraph five of the complaint, it was proper to refuse to admit it, unless the whole paragraph was offered. The paragraph was not separable into two, as in Hedrick v. R.R., 136 N.C. 513, but was so connected that the part not offered in evidence was necessary to explain that which was offered.

The court charged the jury, "It was the duty of the defendant railroad company to furnish the plaintiff with safe and suitable tools and appliances with which to do the work required of him by the defendant. The plaintiff will not be held to have assumed the risk in undertaking to perform a dangerous work, unless the act itself was obviously so dangerous, that in the careful performance the inherent probabilities of injury were greater than those of safety." The defendant could not complain of this.Orr v. Telegraph Co., 132 N.C. 694.

The court committed no error in charging the jury, as follows (which was duly excepted to): "That if the jury should find, by the greater weight of the evidence, that lug hooks were, at the time of the injury, used by railroads doing like work, such as moving heavy timbers, then it was the duty of the defendant to furnish the foreman with lug hooks; and should you further find, by the greater weight of (161) the evidence, that the timber which the plaintiff was handling was such timber, because of weight, length, ground and surroundings, as would lead a man of ordinary prudence to see it was safer to use lug hooks than to use his hands, then failure of defendant to provide, and have them for use, would be negligence, and should the jury find that this negligent act was the proximate cause of the injury, they should answer the first issue ``Yes.'"

And the court also correctly charged, though excepted to: "If the jury should find, by the greater weight of the evidence, that while the plaintiff was carrying the log he stumbled and fell, and, while down, his fellow servants, when they could have prevented the injury by holding the log, negligently and carelessly threw down their end of the log, when, by the exercise of ordinary prudence, they could have held it and prevented the injury, then it would be chargeable to the negligence of defendant's employees, and if this negligence of fellow servants was the proximate cause of the injury, the jury would answer the first issue ``Yes.'"

Several of the exceptions taken are abandoned, because not brought forward in the defendant's brief. Rule 34. Those not thus abandoned, and not discussed by us above, are without merit.

No error.

PLAINTIFF'S APPEAL.