Ethridge v. Atlantic Coast Line R. Co.

• Decision Date: 22 January 1936
• Docket Number: 167.
• Citation: 183 S.E. 539,209 N.C. 326
• Parties: ETHRIDGE v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

183 S.E. 539

209 N.C. 326

ETHRIDGE v. ATLANTIC COAST LINE R. CO.

No. 167.

Supreme Court of North Carolina

January 22, 1936

Appeal from Superior Court, Halifax County; Walter L. Small, Judge.

Action by J. E. Ethridge against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals.

New trial.

In bridge painter's action against railroad for injury to eye by flying steel particle, whether painter assumed risk of working without goggles held for jury (Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.).

This is an action for actionable negligence, brought by plaintiff against defendant, alleging damage. The complaint is as follows:

"That the defendant is and was at the times herein complained of a corporation duly chartered according to law and operating a railroad through the State of North Carolina.

That on the 12th day of February, 1931, the plaintiff was in the employment of the defendant as a painter and on said day was as directed by his foreman, preparing a bridge over Black Creek near Castle Haines, N. C., to paint the same.

That while engaged in scraping the rust from said bridge of defendant, a piece of rust flew from said bridge into the left eye of plaintiff and put the same out.

That it was the duty of the defendant in the exercise of ordinary care to furnish the plaintiff with goggles to protect his eyes from flying rust when the same was scraped from the iron or steel surface of the bridge preparatory to painting.

That the plaintiff requested the defendant to furnish him with goggles to protect his eyes against rusty steel chips and the defendant promised to furnish them.

That the plaintiff continued to work for the defendant relying upon the promise of his superior to furnish him with goggles.

That it was dangerous, as was well known to the defendant, to scrape the rust from the iron or steel without the aid of goggles.

That the plaintiff by reason of the negligence above set out completely lost his left eye and suffered on account of the injury received great physical and mental pain and has been permanently damaged thereby.

That the plaintiff, by reason of the negligence of the defendant as herein set out, has been damaged a large amount; to-wit the sum of $5,000.00.

Wherefore plaintiff demands judgment of the defendant for the sum of $5,000.00 and costs."

In its answer the defendant denies the material allegations of the complaint and alleges: "That, at the time of the matters and things alleged in the complaint, plaintiff and defendant were both engaged in Interstate Commerce."

The defendant, further answering, alleges: "That the bridge, which plaintiff declares he was engaged in scraping for the purpose of repainting, is on defendant company's main line between Wilmington, N. C., and Richmond, Va., and is daily used in interstate carriage of freight and passengers on trains operating between Wilmington, N. C., and Richmond, Va. That plaintiff and defendant were, therefore, each and both engaged in Interstate Commerce at the time of the alleged injury and hurt. That plaintiff was an experienced bridge painter and perfectly familiar with the various duties and requirements of his job, especially with the need of scraping or removing rust from iron or steel structures before painting them. That, in hiring himself to or taking employment with the defendant, as a bridge painter, he assumed all the usual and ordinary risks incident to his employment, of which the matter complained of was one. Defendant alleged that it had not violated any statute enacted for the safety of its said employee that in any wise contributed to the plaintiff's alleged injury, and pleads the plaintiff's assumption of risk in bar of his recovery herein. Wherefore, defendant prays judgment that it be allowed to go hence without day, and have of the plaintiff its cost."

The issues submitted to the jury and their answers thereto, were as follows:

"1. Was plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

2. Did the plaintiff assume the risk of his injury? Answer: No.

3. What damages, if any, is plaintiff entitled to recover from the defendant? Answer: $4,500.00.

4. Were plaintiff and defendant engaged in Interstate Commerce at the time of the injury complained of in the complaint? Answer: Yes."

Judgment was rendered on the verdict. The defendant made numerous exceptions and assignments of error, and appealed to the Supreme Court. The necessary facts will be set forth in the opinion.

Thos. W. Davis, of Wilmington, Spruill & Spruill, of Rocky Mount, and V. E. Phelps, of Wilmington, for appellant.

J. T. Maddrey and George C. Green, both of Weldon, for appellee.

CLARKSON Justice.

This case has heretofore been before this court, Etheridge v. R. R., 206 N.C. 657, 175 S.E. 124, 125. Brogden, J., speaking for the court, 206 N.C. 657, at page 659, 175 S.E. 124, said: "What duty does the law impose upon an employer with respect to furnishing particular tools or appliances to a workman in performing particular types of work? * * * This case is built upon the theory that it was the duty of the defendant in the exercise of ordinary care to furnish goggles to the plaintiff. The leading goggle cases in this state are Whitt v. Rand, 187 N.C. 805, 123 S.E. 84, 85; Jefferson v. Raleigh, 194 N.C. 479, 140 S.E. 76, 77." A new trial was granted on the ground (206 N.C. 657, pages 659-670, 175 S.E. 124, 125): "The second question of law involved presents the familiar principle of the competency of evidence of similar injuries or occurrences. * * * The testimony of witness Keeter discloses neither the substantial identity of circumstance nor proximity of time which the law contemplates, and consequently such testimony should have been excluded."

There was evidence by the plaintiff that about two weeks before his injury he asked the foreman for goggles and was promised that he would get them as soon as he could. The plaintiff was corroborated by a fellow worker. The foreman, T. E. Thompson, testifying for the defendant, denied making any such promise, but stated: "If Etheridge had had these goggles at the time the steel particle or rust flew in his eye I do not suppose it could have gotten in his eye." The evidence was conflicting, but sufficient to go to the jury, unless the plaintiff assumed the risk of injury in a hazardous employment. The rule under the Federal Liability Act (45 U.S.C.A. § 51 et seq.) has been well stated in Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 504, 505, 34 S.Ct. 635, 640, 58 L.Ed. 1062, L.R.A.1915C, 1, Ann.Cas.1915B, 475 (which was quoted by the learned judge below in his charge to the jury), as follows: "When the employee does know of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment without objection, or without obtaining from the employer or his representative an assurance that the defect will be remedied, the employee assumes the risk, even though it arise out of the master's breach of duty. If, however, there be a promise of reparation, then during such time as may be reasonably required for its performance, or until the particular time specified for its performance, the employee, relying upon the promise, does not assume the risk unless at least the danger be so imminent that no ordinarily prudent man under the circumstances would rely upon such promise."

It was for the jury to say whether or not there was a promise made by the defendant and relied upon by the plaintiff, and, if so, whether or not the time specified by the plaintiff as "around two weeks before I got hurt" was so remote as to take it out of the classification of a "reasonable time" for its performance, and, if not, whether the nature of the plaintiff's work was of such a kind that no ordinarily prudent man would regard the danger as so imminent as...