Miller v. NORFOLK SOUTHERN RAILWAY COMPANY

83 S.E.2d 533 (1954)

240 N.C. 617

Ralph E. MILLER, v. NORFOLK SOUTHERN RAILWAY COMPANY.

No. 21.

Supreme Court of North Carolina.

September 22, 1954.

*534 Chas. E. Johnson, Hartford, John H. Hall, Elizabeth City, for plaintiff, appellee.

Wilson & Wilson, Elizabeth City, for defendant, appellant.

HIGGINS, J.

In this case the rules of liability and recovery are governed by the provisions of an Act of Congress known as the Federal Employer's Liability Act, 45 U.S. C.A. § 51 et seq. When a case is brought under this Act in the State courts, matters of procedure, such as the judge's charge, are governed by rules of the North Carolina courts.

Numerous exceptive assignments of error appear in the record and are discussed in the briefs. In our view, it is necessary to consider only one, Assignment of Error No. 17, based on Exception No. 17. This assignment and exception challenge the correctness of that part of His Honor's charge as follows: "Now there are certain duties which a corporation, as is this defendant, owes to its employees, one of which is: They should provide them with a fit and suitable place in which to work; and another is: They should supply them with reasonable assistance in the performance of a duty which requires (remember that word, gentlemen, Requires) assistance of others in the safe performance of their duties; in other words, that the job in question should not be what is known as `undermanned' (u-n-d-e-r-m-a-n-n-e-d-); and if it requires more than one person for the safe performance of a certain duty, such as the one in question in this case, and the defendant has available persons who could have been called in for that assistance, and failed to do so, they would be liable in damages if their failure so to do was the proximate cause of the injury complained of."

The noxious part of the charge is contained in the phrase, "such as the one in question in this case." Whether the judge intended the jury to understand the phrase, such as the one in question in this case, related to and qualified it (which referred to the job) or whether it was intended to relate to and qualify the word "duty," is not clear. If the phrase related to the job, as we are constrained to believe it did, it was equivalent to saying to the jury the job required more than one man. Duty was not at issue, it was not "in question." The law fixed the duty. The question at issue was whether the job required more than one man. What the judge said was equivalent to an expression of opinion that the job required more than one man, or at least that was the probable effect on the jury. That the expression was an inadvertence *535 on the part of a careful and painstaking judge renders the error none the less harmful. Both the statute, G.S. § 1-180, and the decisions that help to fill the books are to the effect that a judge is not permitted even to intimate to the jury whether, in his opinion, an essential fact in a case has or has not been proved.

For the error committed in the charge, there must be a

New trial.