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Usury v. Watkins

S. H. Usury v. M. L. Watkins and Southern Railway Company.

Usury v. Watkins, 67 S.E. 926 (N.C. 1910)
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Court
Supreme Court of North Carolina · State Highest Courts
Decided
April 20, 1910
Judges
Ouriam
Citations
67 S.E. 926152 N.C. 7601910 N.C. LEXIS 370
Cited by 9
Headnotes
Carriers of Passengers — Freight Trains — Customary Jolting — Negligence. It appearing in this case that the injury complained of was proximately caused by the jolting and jarring usual to freight trains, upon which plaintiff was a passenger, there was error in rendering judgment against the defendant railway company.
Summary
Appeal from Biggs, J., at November Term, 1909, of GraN-ville. Action for personal injury ggainst defendant Watkins, as the engineer, and the Southern Railway, as the common carrier operating a freight train with passenger coach attached, between Oxford and Keysville. Plaintiff was a passenger, and, while standing up near car door when train had stopped at a water tank, the train was started and, as plaintiff testifies, he was thrown down and injured. At conclusion of all the evidence plaintiff stated he did not desire or ask’that an issue be submitted as to Engineer 'Watkins. There was a verdict and judgment against the defendant railway company, from which it appealed.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Ouriam

Per Ouriam.

The assignments of error present two questions: 1. Is there any sufficient evidence of negligence? 2. In view of the action of plaintiff in respect to the defendant Watkins, can plaintiff recover of his principal, the railway company?

We are unanimous in the opinion that there is no sufficient evidence of negligence, and that his Honor should have so held.

The train was a long freight with passenger coach attached at end. It was properly equipped with air-brakes and managed by a competent engineer. In starting the train and taking up the slack, it is conceded that much jolting and jarring is inevitable. We do not think the evidence is sufficient to show that the jolting complained of was due to the negligence of the engineer, or could have been reasonably avoided in starting so long a train, or that the engineer managed .the train in a negligent manner. We are somewhat confirmed in this view by the action of the plaintiff at the close of the evidence, who was manifestly unwilling to ask a verdict against the engineer Watkins, upon the evidence.

If the engineer was not guilty of negligence, then upon the evidence of this case the employer could not be held.

Smith v. R. R., 151 N. C., 482 . We recur to what is said in Marable v. R. R., 142 N. C., 557 : “In tailing passage on a freight train a passenger assumes the usual risks incident to traveling on such trains, when managed by prudent and competent men in a careful manner.” We see nothing that takes this case out of this rule.

In this view it is unnecessary to consider the second ground so elaborately discussed before us.

Error.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 9 cases

View all citing references →
1912: 21917: 11918: 21924: 11939: 11940: 219122026peak 1912 · 2

Relies on it most ⓘ

  1. Smith v. Safe Bus Co.3 S.E.2d 362 (N.C. 1939) · Concurrence
  2. Hunt v. Chicago, Burlington & Quincy Railroad181 Iowa 845 (1917)
  3. Kearney v. Seaboard Air Line Railway Co.158 N.C. 521 (1912) · Dissent
  4. Hill v. R. R.11 S.E.2d 552 (N.C. 1940)
  5. Hill v. Atlantic Coast Line Railroad218 N.C. 563 (1940)
  6. Riggs v. Norfolk-Southern Railroad124 S.E. 749 (N.C. 1924)

Most recent

  1. Hill v. R. R.11 S.E.2d 552 (N.C. 1940)
  2. Hill v. Atlantic Coast Line Railroad218 N.C. 563 (1940)
  3. Smith v. Safe Bus Co.3 S.E.2d 362 (N.C. 1939) · Concurrence
  4. Riggs v. Norfolk-Southern Railroad124 S.E. 749 (N.C. 1924)
  5. Mitchell v. R. R.97 S.E. 628 (N.C. 1918)
  6. Mitchell v. Southern Railway Co.176 N.C. 645 (1918)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

DepthCaseCited by
Marable v. R.R., 55 S.E. 355 (N.C. 1906) 28
Smith v. South & Western R.R., 66 S.E. 435 (N.C. 1909) 19

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