Cowles v. Richmond & Danville R.R. Co.

• Decision Date: 31 January 1881
• Citation: 37 Am.Rep. 620,84 N.C. 309
• Parties: HENRY COWLES v. RICHMOND & DANVILLE RAILROAD COMPANY.
• Court: North Carolina Supreme Court

84 N.C. 309

37 Am.Rep. 620

HENRY COWLES

v.RICHMOND & DANVILLE RAILROAD COMPANY.

Supreme Court of North Carolina.

January Term, 1881.

CIVIL ACTION for damages tried at August Special Term, 1880, of ROWAN Superior Court, before McKoy, J.

Judgment for plaintiff, appeal by defendant.

Mr. J. S. Henderson, for plaintiff .

Mr. J. M. McCorkle, for defendant .

RUFFIN, J.

The plaintiff alleges that he was a brakesman on the defendant's road, and that he was injured by having his foot and ankle crushed while in its service and by reason of its negligence. On the trial he testified that he was under the immediate direction and order of one Garrison, who was the engineer and conductor of the defendant's freight train, and on the occasion of the injuries received was ordered by him to go upon a certain car and apply the brake, so as to prevent a clash between that car and another; that he went upon the car, and while executing the order given him was injured in the manner complained of, by a collision of the two cars, which collision resulted from the fact that the cars were so constructed that their “bumpers” did not correspond or fit to one another as they should have done in order to prevent the cars coming in too close contact, which defect was unknown to the plaintiff, and but for which he would not have been injured.

The defendant's counsel asked the judge to instruct the jury that if they believed that plaintiff was injured in consequence of the negligence and unskillfulness of the engineer, Garrison, then, he could not recover, which the court declined to do; but told them that the plaintiff did not complain that his injuries resulted from the negligence and unskillfulness of the engineer; that the point for them to consider was whether the plaintiff was injured by reason of the defendant's negligence and without default on his part; that it was defendant's duty to furnish safe cars, supplied with the necessary machinery and appliances to render them secure, and if the jury believed that it had failed in this and thereby the plaintiff had been injured, without any neglect or want of skill on his part, then, they should find the issues submitted in favor of the plaintiff without regard to the conduct of the engineer; but if they should believe that the defendant had furnished safely constructed and appointed cars, or that the plaintiff had contributed by his negligence to his own injury, then they should find for the defendant, to which the defendant excepted.

The only issue submitted to the jury was, “Did the plaintiff, while in defendant's employment, receive the injuries complained of, by reason of defendant company having carelessly and negligently provided and used unsafe and defective cars or ‘bumpers,’ and without the fault of the plaintiff”? to which the jury responded in the affirmative.

The defendant's exception as argued before us, does not go to any portion of His Honor's charge as given, but only to his refusal to give that specially asked for; and the purpose of counsel in making the request is admitted to have been to bring the case within the rule, so much discussed of late by elementary writers, and so often, and in some instances so variously announced by the courts, which declares that a servant who has sustained injuries by reason of the negligence of a fellow-servant in the same employment cannot maintain an action against the master, provided the latter has used due care in the selection of such fellow-servant. He should have been careful then to see that more evidence was put into the case than is to be found there, going to show the respective duties, powers and conduct of the two servants, and especially their relations to each other--whether they were strictly fellow-servants occupying the same level, or whether the engineer was a superior whose commands the plaintiff was bound to obey;...