Cobia v. Atlantic Coast Line R. Co.

• Decision Date: 29 October 1924
• Docket Number: 285.
• Parties: COBIA v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

125 S.E. 18

188 N.C. 487

COBIA v. ATLANTIC COAST LINE R. CO.

No. 285.

Supreme Court of North Carolina

October 29, 1924

Appeal from Superior Court, New Hanover County; Calvert, Judge.

Action by Annie Cobia, administratrix of the estate of Gus Cobia deceased, against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. No error.

Civil action to recover damages for an alleged negligent injury caused by defendant's wrongful act, and resulting in the death of plaintiff's intestate. Upon denial of liability and issues joined, the jury returned the following verdict:

"(1) Was plaintiff's intestate killed by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

(2) Did plaintiff's intestate voluntarily assume the risks incident to performing the work which he was told to do, in the manner in which he undertook to do it? Answer. No.

(3) Did plaintiff's intestate, by his own negligence, contribute to his injury? Answer: Yes.

(4) What damages, if any, is plaintiff entitled to recover? Answer: $4,000."

Judgment on the verdict for plaintiff. Defendant appeals, assigning errors.

Rountree & Carr, Thos. W. Davis, and V. E. Phelps, all of Wilmington, for appellant.

Rodgers & Rodgers, of Wilmington, for appellee.

STACY J.

It was conceded on the trial that the defendant is a common carrier by railroad, engaged in interstate commerce, and that plaintiff's intestate was employed by the defendant in such commerce at the time of his injury and death. The case therefore is one arising under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), and it has been properly tried under that act. Shanks v. Del. R. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L. R. A. 1916C, 797; Capps v. Railroad, 183 N.C. 181, 111 S.E. 533; Renn v. Seaboard, 170 N.C. 128, 86 S.E. 964. The deceased employee left a widow and three small children him surviving, and his administratrix, or personal representative, is prosecuting this suit on behalf of these persons who fall in the first class of beneficiaries under the statute. Horton v. Railroad, 175 N.C. 472, 95 S.E. 883; Dooley v. Seaboard, 163 N.C. 463, 79 S.E. 970, L. R. A. 1916E, 185.

Plaintiff's intestate, Gus Cobia, was employed by the defendant as a hostler's assistant to work around and about the engines in one of the railroad yards at Wilmington, N.C. While in the discharge of his duties as such laborer he was killed, on December 14, 1922, by falling or being precipitated into an ash pit, just as he was preparing to open the ash pan of engine No. 900, at the direction of John E. Eichorn, his immediate superior. The injury occurred about 6:45 p. m., or 15 minutes before the deceased would have quit work for the day. It was dark at this time. The pit was 50 feet long, 11 feet wide, and 13 feet deep. It was filled with water which may have been warm or hot, as the ash pans of the engines were constantly being emptied into it. There was no covering or railing around the pit; and in the dim light and shadows, with ashes and coal dust floating upon the top of the water, it had the appearance of solid ground.

Eichorn, the hostler, told plaintiff's intestate to open the ash pan on engine No. 900 before he pulled it over the pit with engine No. 339, to which it was attached. The ash pan is opened by a dump lever, which is on hinges and extends about 12 inches from the side of the pan. It is necessary that this be opened before the engine is pulled over the pit. Cobia was on the opposite side of the engine from the pit when this instruction was given. As the engine was headed north, it was necessary for him to cross over the track and get on the side of the engine next to the pit, in order to carry out the instruction of his hostler. Eichorn backed the engine (No. 900) so that Cobia could stand on the ground and open the pan, but in the darkness he apparently mistook the distance and did not have the engine as far from the pit as he thought. Hence, when Cobia crossed over the track, climbing between the two engines, he stepped off into the pit and was drowned.

The negligence of the defendant is not seriously disputed, but it is earnestly contended that Cobia assumed the risk of his injury, being familar with the situation, as he was, and having worked around the pit in question for some time, at least for a period of 30 days prior thereto. Defendant therefore insists that the action should be dismissed as in case of nonsuit, and it should be held, as a matter of law, that plaintiff's intestate assumed the risk of his injury. In support of this position, defendant relies chiefly upon the decision in Glenn v. C. N. O. & T. P. R. Co., 157 Ky. 453, 163 S.W. 461, a case in many respects similar to the one at bar, but with this vital distinction or difference, namely, in the instant case, Cobia did not know that Eichorn had failed to back the engine far enough for him to cross over the track in safety, while in the Glenn Case no such circumstance or evidence appeared.

Knowledge is the watchword of the defense of assumption of risk; knowledge of the dangers and hazards to be encountered. C. N. O. & T. P. Ry. Co. v. Thompson, 236 F. 9, 149 C. C. A. 211. In Chicago & E. R. Co. v. Ponn, 191 F. 688, 112 C. C. A. 233, Judge Hollister says:

"The only kind of knowledge which on the ground of assumption of risk will bar a recovery is actual [or constructive] knowledge."

Speaking to a similar question in Jones v. Railroad, 176 N.C. 264, 97 S.E. 48, the present Chief Justice makes the following observation:

"While the law in question [federal Employers' Liability Act] clearly recognizes assumption of risk as a defense in certain instances, under section 4 such a position is absolutely inhibited in cases where the violation of a federal statute, enacted for the protection of the employees, contributed to the injury or death of employee; and by correct deduction from the terms and meaning of section 1, making railroads engaged as common carriers of interstate commerce liable in damages for injuries or death caused by the negligence of their officers, agents, or employees, the negligence of fellow servants is withdrawn from the class of assumed risks in cases of unusual and instant negligence, and under circumstances which afforded the injured employee no opportunity to know of the conditions or appreciate the attendant dangers. This doctrine of assumption of risk is based upon knowledge or a fair and reasonable opportunity to know, and usually this knowledge and opportunity must 'come in time to be of use.' 26 Cyc. p. 1202--citing 160 Ind. 583."

Again, in Chesapeake & Ohio Ry. v. De Atley, 241 U.S. 311, 36 S.Ct. 564, 60 L.Ed. 1016, it is said:

"An employee is not bound to exercise care to discover extraordinary dangers arising from the negligence of the employer or of those for whose conduct the employer is responsible, but may assume that the employer or his agents have exercised proper care with respect to his safety until notified to the contrary, unless the want of care and the danger are so obvious that an ordinarily careful person under the circumstances would observe and appreciate them."

By the common law, the employee assumes the risks normally incident to the occupation in which he voluntarily engages; other and extraordinary risks, and those due to the employer's negligence, he does not assume until made aware of them, or until they become so obvious and immediately dangerous that an ordinarily prudent man would observe and appreciate them; in either or both of which cases he does assume them, if he continues in the employment without objection, or without obtaining from the employer an assurance that the matter will be remedied; but, if he receive such an assurance (the dangers being both obvious and imminent), then, pending the performance of the promise, the employee, in ordinary cases, does not assume the special risk. Of course, if the dangers be so imminent that no ordinarily prudent man under the circumstances would rely upon such promise, then he would assume the risk, even pending the performance of such promise. Central Vt. R. Co. v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433, Ann. Cas. 1916B, 252; Seaboard Ry. Co. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Gila Valley, etc., Ry. v. Hall, 232 U.S. 94, 34 S.Ct. 229, 58 L.Ed. 521; Gaddy v. Railroad, 175 N.C. 515, 95 S.E. 925.

In Horton v. Railroad, 175 N.C. 472, 95 S.E. 883, the difference in principle between assumption of risk, which arises out of contract, and contributory negligence, which arises out of tort, is stated as follows:

"Assumed risk is founded upon the knowledge of the employee, either actual or constructive, of the risks to be encountered, and his consent to take the chance of injury therefrom. Contributory negligence implies misconduct, the doing of an imprudent act by the injured party, or his dereliction in failing to take proper precaution for his personal safety. The doctrine of assumed risk is founded upon contract, while contributory negligence is solely matter of conduct."

See, also, upon this subject, Cincinnati, N. O. & T. P. Ry. Co. v. Thompson, 236 F. 1, 149 C. C. A. 211 (opinion by Judge Cochran); Chicago & E. R. Co. v. Ponn, 191 F. 682, 112 C. C. A. 228 (opinion by Judge Hollister); Narramore v. Cleveland, C., C. & St. L. Ry. Co., 96 F. 298, 37 C. C. A. 499, 48 L. R. A. 68 (opinion by Judge Taft); St. Louis Cordage Co. v. Miller, 126 F. 495, 61 C. C. A. 477, 63 L. R. A. 551 (opinion by Judge Sanborn).

Under the facts of the present case, we think the question of assumption of risk was properly left to the jury, as this is a matter which the defendant must plead...