Silvey v. . R. R.

CLARK, C. J. dissenting. The usual issues in an action of this character were submitted to the jury and answered for plaintiff. His Honor set aside the verdict. The usual motion to nonsuit had been entered in apt time. The motion to nonsuit was allowed, and plaintiff excepted and appealed. The evidence, taken in its most favorable view of for plaintiff, tends, to prove that one Markham had some building and plumbing material in a car at defendant's station at Roanoke Rapids. The agent of defendant said to Markham that he could not unload the car just then, as he had no one to assist him. Whereupon Markham voluntarily undertook to unload his material, and procured two of his own employees, plaintiff and a colored man, one Hub Mills, to assist. The car was alongside the platform, about 18 inches from it. An iron gangplank lay across the opening from car door on platform. According to Markham, the gang-plank was about 2 feet wide and about 2 feet long and a quarter of an inch thick. According to plaintiff, "It was an ordinary piece like they always use, 2 or 3 feet wide. It is the kind of iron that was used at these places for unloading cars." Plaintiff further testified that it was wider and as long as the table in the trial court room, which is 2 feet wide and 31/2 feet long. There was no defect in the iron and none in the car and platform.

The plaintiff with Markham and Mills commenced to unload (111) Markham's material from the car by carrying it across the iron gang-plank, and each had carried several ``Turns," Plaintiffs says, "I went in to get a turn. Before I went in. Mr. Markham went in. He went in and got a box of fillings." Plaintiff further stated that as he stepped on the end of the iron at the door it gave way ;and he fell between the car and platform and was injured. Plaintiff further testifies: "The end of the piece of iron was lapping over on the car and on the platform. It looked perfectly safe to me. The iron did not break. It slipped from the door of the car. That car door. Platform was an ordinary platform. There was nothing about that piece of iron to in any way deceive me. I had been over this same piece of iron twice before — once in and once out. Markham had been over it a round trip, once in and once, out before I had. On the previous trips when we came out of the car both Markham and I were bearing loads in our arms and could not see. When the iron fell it was in plain view. There was nothing to obstruct my view. I could have seen it. The position that the iron was in the car and the position it occupied on the platform was in my plain full view, and I could have seen it. Colored man helping us walked across the iron. I don't know how many trips he made. Mr. Markham and I were carrying out the light things and he was carrying the heavy things. That was before I was hurt. I don't know how many trips he made. I was going back in when fell. I had nothing in my hands when I fell."

It is manifest, we think, that plaintiff's injury was due to unavoidable accident or else to his own carelessness in failing to use his eyes as he crossed the gang-plank, and not to the breach of any duty defendant owed him. Markham was impatient for his material and voluntarily undertook to unload it with his own employees, plaintiff and Mills. The gang-plank was of the kind in general use and, according to plaintiff's own evidence amply sufficient for unloading the car. Markham and his assistance used it with safety "several trips." When plaintiff was returning to the car for another "turn" the end of the plank in the car door slipped off and precipitated plaintiff to the ground.

The evidence shows that the method was the one necessarily employed in unloading cars and the implement was such as is in general use, without a defect and fully sufficient for the purpose for which it was intended. The use of the gang-plank is extremely simple, and its placing and supervision must of necessity be left exclusively to those who use it. It was the plan duty of plaintiff to watch it and see that it was in proper position so as not to slip before he stopped on it, and that too much of it was not on the platform and too little on the car, and vice versa.

(112) It is a matter of common knowledge and observation that a gang-plank like the one used will slip from one side to the other so as to make it liable to fall unless kept in position. This is necessarily caused by rolling trucks of walking to and fro repeatedly over it in car.

It is the duty of those it to use their eyes and watch it. The railroad can furnish them a safe gang-plank, as it did in this instance, but it cannot furnish eyes nor can it compel their attention and care. The plaintiff very frankly said that the position of the plank was in full view and that he could have seen it. It is manifest that had he used his eyes, he could have averted the injury.

As said by Dean Swift, quoting from Matthew Henry: "None so blind as those who will not see; none so deaf as those who will not hear."

As declared in Holy Writ: "Having eyes, see ye not? and having ears, hear ye not? And do ye not remember?" 8:18.

The plaintiff's injury is evidently the result of an unfortunate accident which defendant could not guard against and for which it is not liable, Martin v. Mfg. Co., 128; Bryan v. R. R., 128 N.C. 387; or it is due to plaintiff's own lack of ordinary care, that equally bars his recovery, as he is not an employee of defendant.

Autry's case, 156 N.C. 293, and Finch's case, 151 N.C. relied on by plaintiff, have no application. In the former the plaintiff was injured by driving his loaded wagon into a deep hole on defendant's right of way, of which it had previous notice and promised to repair. In the latter the plaintiff established the fact that a hole, caused by a rotten plank in one of the permanent structures of the defendant, was covered by a bale of cotton, and when plaintiff, acting under the instructions of the defendant's agent, attempted to "head up" the bale of cotton, he stepped in this hole and was injured.

Affirmed.

The defendant's appeal in this case is dismissed.