Smith v. Southern Railway Co. , 129 N.C. 374 ( 1901 )

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.