Coley v. North Carolina R. Co.
| Citation | 39 S.E. 43,128 N.C. 534 |
| Parties | COLEY v. NORTH CAROLINA R. CO. |
| Decision Date | 07 June 1901 |
| Court | United States State Supreme Court of North Carolina |
Appeal from superior court, Wake county; Hoke, Judge.
Action by Samuel S. Coley against the North Carolina Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Whether plaintiff acted as a prudent man in taking hold of a drain pipe on the tender of an engine, which was defective in not having handholds, was a question for the jury.
F. H Busbee and A. B. Andrews, Jr., for appellant.
T. M Argo and W. H. Day, for appellee.
This is an action for injuries by the defendant road. In the "case" it is stated: That the defendant North Carolina Railroad had been leased to the Southern before the injury complained of was received, and that the Southern was in possession and operating the same at that time. But, as no point was made as to this fact on the trial of the case nor on appeal, we will give it no further attention. The plaintiff was an experienced railroad man, having been engaged in railroad work for more than 20 years, and had been in the employ of the defendant for the last 4 years; and on the 14th of June, 1898, while in the employment of the defendant as conductor of the shifting engine at Goldsboro he received the injury complained of. That prior to and until the 20th of May, 1898, he had used a regular shifting engine with a sloping or turtle-top tender, but on that day the defendant took this engine and tender from Goldsboro, and replaced it with an old road engine and tender, unsuited for use as a shifting engine and tender. That his work as switch engineer necessitated his riding on the rear end of the tender much of his time. That he could not successfully do the work of switch engineer without so riding. That, besides the tender of the last engine furnished being unsuited for his work, it had no handholds or "grab irons" to enable him to raise himself upon its platform with safety, which it was necessary for him to do to enable him to signal the engineer. That he saw and knew this tender had no handholds or grab irons when he received it on the 20th of May, and he knew that it was dangerous to use it without them, but that he used it, and continued to use it, without such grab irons, until the 14th of June, when he received the injury complained of. That to supply the place of the grab irons, or, rather, because there were no grab irons, he used the drain pipes from the top of the tender. These were tubes or hollow cylinders leading from the top of the tender to take off the overflowing water, and were never intended to be used as handholds. The plaintiff says that he had frequently used them as handholds before the day of the injury, though he had used the one on the other side of the tender most. That on the day of the injury he had driven down to some lumber cars, and attached the shifting engine to them, and gave the signal to the engineer to move out. To do this the engine would have to move backward, and when he gave the signal to move he undertook to get on the platform of the tender, and, for the want of grab irons, he took hold of the drain pipe, which gave way (pulled out or broke off), and he fell to the ground, and was run over by one of the wheels of the tender. His arm was crushed so badly that it was necessary to amputate it, and he was badly injured otherwise. And he contends that it was no fault of his that he was injured, but that it was caused by the fault and negligence of the defendant in not furnishing him a tender with grab irons, with which to do his work. While, on the other hand, the defendant does not deny but what it was guilty of negligence in not furnishing a tender with grab irons, it contends that this was a patent defect, seen and known by the plaintiff on the 20th of May, when he received this engine and tender; and, by his continuing to use the same from that time to the time of the injury, that was a waiver of any objection on that account, and an "assumption of the risk" of any damage that might result from such defect. The defendant also contends that the plaintiff was guilty of negligence which contributed to, and was the proximate cause of, his injury, and that he cannot recover on that account. The defendant also contends that there are errors in the judge's charge to the jury in charging what he should not have charged, and by refusing to give special requests of the defendant that he should have given. The defendant also contends that the judge erred in his instructions to the jury as to the measure of damages, as pointed out in its assignment of errors, as that was the earliest opportunity it had of doing so.
While this case was ably and carefully tried, it is apparent from the record, the prayers for instruction, and the argument of counsel on both sides, that the main contention below, as it was in this court, was as to whether the plaintiff had "assumed the risk" of the defective tender in not having the grab irons; and this question has given us a great deal of trouble, as we had such a line of cases, commencing at least as far back as Crutchfield v. Railroad Co., 78 N.C. 300, Johnson v. Railroad Co., 81 N.C. 454, Cowles v. Railroad Co., 84 N.C. 312, Hudson v. Railroad Co., 104 N.C. 501, 10 S.E. 669, Pleasants v. Railroad Co., 95 N.C. 195, and other cases in our own Reports, besides many cases from other courts that seem to sustain the contention of the defendant; while there are more recent decisions in our own court, though not directly in point, that seem to sustain a different rule,--such as Greenlee v. Railway Co., 122 N.C. 977, 30 S.E. 115, 41 L. R. A. 399, Troxler v. Railway Co., 124 N.C. 189, 32 S.E. 550, 44 L. R. A. 313, and Lloyd v. Hanes, 126 N.C. 361, 35 S.E. 611. But, after all, it seems that this important contention as to the "assumption of risk" is disposed of by chapter 56, Priv. Laws 1897, which was not called to our attention in the arguments or briefs, and which reads as follows:
Commencing with the often-cited case of Priestley v. Fowler, 3 Mees. & W. 1, what is known as the "Fellow Servant Law" had been developed until it seems to have become to be a hardship on the employés of railroads, where there were so many employés whose rights depend on the action of some other employé; and Acts 1897, c. 56, was passed to relieve such employés from what appeared to be a hardship, and oppressive upon them. And, while there had not been uniformity in the different jurisdictions as to what is called the "assumption of risk," it seemed to be well settled by the decisions of this court (see cases cited above) that, where an employé entered into the service of a railroad company using defective machinery, knowing of such defects, or where he continued in the employment, after having such knowledge, without notifying his superiors, and protesting against its continuance, such employé would have been held to have waived such objection, and to have assumed the risk arising from the use of such defective machinery. This, it seems, was considered by the legislature a hardship, and oppressive, as the competition was so great for such employment that employé s were deterred from making such complaints lest they might lose their places. So it seems that the legislature undertook to relieve the employés of this trouble, as it deemed it to be a hardship. So the legislature, after providing relief against acts of "fellow servants," enacted as follows: "Or by any defect in the machinery, ways or appliances of the company, shall be entitled to maintain an action against said company." And by the second section of said act it is provided "that any contract or agreement, expressed or implied, made by any employés of said company to waive the benefit of the aforesaid section, shall be null and void." The court has construed this act, holding it to be constitutional, and giving effect to it so far as it applied to fellow servants. Hancock v. Railroad Co., 124 N.C. 222, 32 S.E. 679. And we see no reason why we should not do so as to the "assumption of risk." It is agreed that assumption of risk is contractual, either by express terms or by implication; and disputes usually were as to whether the plaintiff contracted by implication or assumption for dangers not existing at the date of employment. And it would seem by this act that the legislature intended to put an end to such contentions by saying in the first section that he shall have a right of action for injuries caused by such defective machinery, and by providing in the second section that he cannot waive this right by contract, expressed or implied. This legislation (Acts 1897, c. 56) seems to be in the same spirit and in harmony with Acts Cong. 1893, c. 196 (23 Stat. 531). In that statute it is enacted in section 4 that all railroad companies engaged in interstate commerce shall have grab irons upon their cars, etc.; and in section 8 the right of action is given to any employé injured for the want of any of the appliances mentioned in said...
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