Elliott v. . Furnace Co.

The facts in evidence tended to show that defendant company was mining iron ore at Cranberry, N.C. and, as we understand the testimony, the ore was being taken from the mine at different levels under the mountain and approached from the outside by tracks laid in tunnels, the main track being designated as slope No. 5, and about a quarter of a mile or so from the entrance another track branched off from this, going to a different opening and known as slope No. 3; that in conveying ore from the mine the empty cars were taken in with an engine, and after being loaded they were later allowed to run down the slopes by gravity. That at each opening there were different squads of hands engaged, divided into night and day shifts, and the loaded cars were usually started down the slopes at or soon after the time the respective shifts quit their period of work. That the employees, in coming out from their work, walked down the tracks, this being a smooth, dry way, and had been accustomed to do this for several months past. That there were spaces on either side of the track of 4 to 5 feet, but these were uneven and rocky, and at places there were obstructions or pits or holes, making it necessary to take, the track, and the middle of the track, as stated, was the path they all took; that there has been a plank walkway safe and suitable for the hands, but for some reason, on moving the shop or shops of the company on one of the slopes, this walkway had been discontinued, was no longer lighted, and at places it was to some extent obstructed. That there were lights along the track at places, but at the point of the injury the evidence was to the effect that the lights were very dim. That there were usually 40 to 45 hands coming out along the track after the night shifts quit work. That plaintiff was an employee on the night shift on slope No. 3, and on 8 February, 1919, about 4 a.m., the hour when he usually quit work, he and two or three others were walking down the track or standing in the space at the side, at a point not far below where No. 3 slope left No. 5, when 15 to 18 loaded cars rolled by — in a bunch, or so near it as to appear that way — the larger part of them coupled together, and with some car boys on the forward cars. That plaintiff, on the side, was approaching an obstruction or hole, and making it necessary for him to get back on the track or cross it, and as the bunch of cars passed he stepped back on the track and was immediately struck by a detached car 15 or more feet behind the others, and which was without lights or any one on it. The car ran over his leg, causing painful and serious injuries, etc.

It is the fully established principle with us that an employer of labor, in the exercise of reasonable care, is required to provide for his employee a safe place in which to do his work, and our decisions hold that the obligation extends to the approaches to it when they are under the employer's control and in the reasonable scope of this duty. Kelly v. Power Co., 160 N.C. 283; Myers v. Lumber Co., 129 N.C. 252; Deligny v.Furniture Co., 170 N.C. 189; Kiger v. Scales, 162 N.C. 133; Norris v.Cotton Mills, 154 N.C. 474; Vaden v. R. R., 150 N.C. 700.

Under the conditions presented in the evidence, the defendant company should have provided a safer way, and kept it in proper condition, by which these employees could have gone out from their work, and further, it was a negligent breach of duty and of a pronounced type for defendant to allow a lot of loaded cars, day by day, to be started down this track without lights or adequate control or warning provided at a time when it was known that numbers of its employees would be on this track, and so exposed to very real danger. It was not only probable, but well-nigh certain that serious injury would be the result to one or more of them, and under the principle of the cases cited, and others of like kind, the court committed no error to defendant's prejudice in submitting the issue on the defendant's negligence as an open question to the jury.

And as to the conduct of the plaintiff considered on the issue of contributory negligence, it is the well considered rule that an employee should always be properly attentive to his own safety, and it has been time and again held that when one has stepped on a railroad track, and especially at a time when there is likelihood of a car passing, it will usually amount to contributory negligence as a matter of law, but this is not always nor necessarily true.

An examination of the authorities on the subject will disclose that the principle referred to is not near so insistent where the injured party is on the track in the line of his duty or by license of the company, and inSherrill v. R. R., 140 N.C. 252, it was said that while one who voluntarily entered on a railroad track without looking or listening, is usually held guilty of contributory negligence, the facts and attendant circumstances may so qualify the obligation as to require the question to be submitted to the jury.

A similar ruling was made at the same term in Cooper v. R. R.,140 N.C. 209, and the position has been again and again approved in our decisions. Lutterloh v. R. R., 172 N.C. 116; Johnston v. R. R.,163 N.C. 431; Fann v. R. R., 155 N.C. 136; Wolfe v. R. R., 154 N.C. 569;Farris v. R. R., 151 N.C. 483.

While plaintiff testifies that if he had looked back he might have seen this car, or if he had remained where he was he would have escaped injury, the facts in evidence also show that plaintiff was not a trespasser in the use of this track, but that it was the usual and practically the only way provided by the company for the hands in going from their work; that at the place of the injury the lights were very dim; that a large bunch of cars, apparently fastened together, had just passed; that his attention was for the moment distracted and his hearing interfered with by these cars; that the point at which he was standing was near an obstruction or pit, just ahead, which required that he go back upon, or across, the track, and as he did so he was struck by a stray or detached car separated from the others, which approached without any light or person to give warning. Under these, the attendant circumstances, we think that the plaintiff might have reasonably concluded that all the cars that were anywhere near had passed in the first lot, and that under the principles recognized and approved by these authorities, the court was justified in submitting the question of contributory negligence also as an open one to the jury.

On careful examination we find no error in the record, and the judgment for plaintiff is affirmed.

No error.