Coley v. North Carolina R. Co.
| Decision Date | 20 December 1901 |
| Citation | 40 S.E. 195,129 N.C. 407 |
| Parties | COLEY v. NORTH CAROLINA R. CO. |
| Court | North Carolina Supreme Court |
Petition for rehearing. Denied.
For former opinion, see 39 S.E. 43.
The question of recklessness in the use of defective machinery by a railroad employé is one of fact for the jury. Rehearing, 39 S.E. 43, 128 N.C. 534, 57 L.R.A. 817, denied.
This case is now before us on a petition to rehear. It was first argued in this court at the September term, 1900, and was carried over under advisari. At the February term, 1901, it was reargued by leave of the court, and determined, the case being reported in 128 N.C. 534, 39 S.E. 43. We have thus had the advantage of three distinct arguments by able and learned counsel, who have also filed elaborate briefs. With such a presentation of the case, and after careful consideration, we feel compelled to adhere to our former decision. We do so upon an entire review of its merits on account of its importance as a precedent, which, we think, takes it out of the strict operation of the rule invoked by the plaintiff and laid down in Weisel v. Cobb, 122 N.C. 67, 30 S.E 312, and cases therein cited. The facts are sufficiently stated in the well-considered opinion of the Chief Justice.
The doctrine of fellow servant is generally said to have had its origin in the case of Priestley v. Fowler, 3 Mees. & W. 1 decided in 1837, where the plaintiff had his thigh broken by the breaking down of an overloaded butcher's van, loaded and conducted by a fellow servant. The doctrine, which was rather inferentially laid down in Priestley's Case, was for the first time distinctly enunciated in 1841 in Murray v. Railroad Co., 1 McMul. 385, 36 Am. Dec 268, where a fireman was injured through the negligence of an engineer on the same train. However, the leading case upon the subject is undoubtedly that of Farwell v. Railroad Corp., 4 Metc. (Mass.) 49, 38 Am. Dec. 339, in which Chief Justice Shaw delivered an elaborate opinion, which has been characterized by a distinguished jurist as "the fountain head of the common law of England and America on this subject." The development of the doctrine through judicial construction, and the largely increased area of its application caused by the increasing use of dangerous machinery, with a relative increase in the number of serious accidents, suggested the necessity of its material modification. Some of the states attempted to do so through judicial construction by the introduction of the rule of vice principal, while others had recourse to special legislation. Among such statutes that have been most generally cited and most frequently construed we find the English employer's liability act of 1880, and the subsequent acts of Alabama, Massachusetts, Colorado, and Indiana. All of these acts are more comprehensive than our own, inasmuch as they are not restricted to railroad companies; but, on the other hand, they all contain certain conditions which materially affect their application. Our statute, on the contrary, is simply an unconditional abrogation of the kindred doctrines of fellow servant and assumption of risk as applied to railroad companies. It is the act of February 23, 1897, erroneously printed as chapter 56 of the Private Laws of 1897, and is as follows:
"The General Assembly of North Carolina do enact:
Section 1. That any servant or employé of any railroad company operating in this state who shall suffer injury to his person, or the personal representative of any such servant or employé who shall have suffered death, in the course of his services or employment with said company, by the negligence, carelessness, or incompetency of any other servant, employé or agent of the company, or by any defect in the machinery, ways or appliances of the company, shall be entitled to maintain an action against such company.
Sec. 2. That any contract or agreement expressed or implied made by any employé of said company to waive the benefit of the aforesaid section shall be null and void."
This court has held this act to be constitutional as far as it applied to fellow servants. Kinney v. Railroad Co., 122 N.C. 961, 30 S.E. 313; Wright v. Railroad Co., 123 N.C. 280, 31 S.E. 652; Hancock v. Railway Co., 124 N.C. 222, 32 S.E. 679. We see no reason why the remainder of the act is not equally constitutional, as it is necessary to give any practical value to this act itself. It is well settled that the doctrine of fellow servant and assumption of risk rest entirely upon an implied contract; and, if an express contract could be made to take the place of an implied contract, the essential purposes of the act could be practically defeated at the will of the employer. That such statutes are not repugnant to the constitution of the United States has been repeatedly decided. The Kansas statute was sustained in Railroad Co. v. Mackey, 127 U.S. 205, 8 S.Ct. 1161, 32 L.Ed. 107, where the court says, on page 210, 127 U.S., page 1163, 8 Sup. Ct., and page 109, 32 L. Ed.: This case was quoted and approved in Railroad Co. v. Herrick, 127 U.S. 211, 8 S.Ct. 1176, 32 L.Ed. 109, sustaining the Iowa statute; in Railroad Co. v. Pontius, 157 U.S. 209, 15 S.Ct. 585, 39 L.Ed. 675; and in Railroad Co. v. Mathews, 165 U.S. 1, 17 S.Ct. 243, 41 L.Ed. 611. We have, therefore, no hesitation in holding the act of February 23, 1897, valid in its entirety, and that it deprives all railroad companies operating in this state of the defense of assumption of risk, whether resting in contract, express or implied, and whether pleaded directly or under the doctrine of fellow servant.
Beyond this we cannot go, as we think that the intent of the statute related simply to the contractual relations existing expressly or by implication, between the plaintiff and defendant; and that the general assembly did not intend to forbid the plea of contributory negligence in the real meaning of the term. Some courts appear to have confused assumption of risk with contributory negligence, by regarding them as equivalent defenses; but they are essentially different in their nature, their origin, and their results. Contributory negligence, of course, always involves the fact of actual negligence on the part of the plaintiff, while the simple assumption of risk does not of itself imply negligence, which may or may not coexist. A defective machine carefully handled, or a safe machine carelessly handled, may equally result in an accident; but the resulting responsibility would be by no means the same. This is especially true since the act of 1897. As the law now stands, the use of machinery obviously defective will not prevent the plaintiff from a recovery for an injury resulting therefrom, unless the apparent danger is so great that its assumption would amount to a reckless indifference to probable consequences. What is recklessness, depending upon the rule of the prudent man, is, as is said in the former opinion of the court, a matter of fact for the jury, as it necessarily depends upon the peculiar facts of each case. The best definition we can give, applicable to such cases as that at bar, is that adopted by this court in Hinshaw v. Railroad Co., 118 N.C. 1047, 24 S.E. 426, that the danger of using the defective machine must be not only apparent, but so great that there are more chances against its safe use than there are in favor of it. This risk must be considered in connection with the skill and experience of the plaintiff, as a sailor might with entire safety climb up into the rigging, where it would be utter recklessness for a landsman to follow. In all such cases the "personal equation" is an important factor. It is admitted that at the time of the injury the plaintiff had been in the railroad service for 30 years, in the service of the defendant over 4 years as yard conductor, and was fully versed in the duties of his position. It further appears that the regular switch engine with a sloping tender was taken away, and a road engine substituted therefor, that had no handhold above the platform of the tender. This handhold could be used only while he was on the lower step, and yet, if he remained on that step, he could not see the engineer, or signal to him, without leaning outward in an uncomfortable and dangerous position. The proper performance of his duties required him to stand upon the platform of the tender where he could see and be seen; and to get up there he must pull up by catching hold either of the drainpipe or the top of the tender. He swears that of the two he considered the drainpipe the safer, as well as the more convenient. Neither had been provided for such use, and, if he pulled himself up at all, he was compelled to do so by using something intended for another purpose. He had been using this drainpipe regularly for such purpose for three weeks, but had used the one on the other side more because the most of his work was on that side. If the drainpipe had been properly fastened, it would have been safe, and he would not have been hurt. These are the most material points of his testimony, and he is largely corroborated by other witnesses. The plaintiff testifies that, if the drainpipe had...
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