Fleming v. Southern Ry. Co.

Decision Date09 December 1902
Citation42 S.E. 905,131 N.C. 476
CourtNorth Carolina Supreme Court

Appeal from superior court, Iredell county; Coble, Judge.

Action by D. E. Fleming against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

An instruction that a contract of an employee of a railroad company to waive the benefit of an action which he may have against it for injuries is void is calculated to mislead by giving the impression that a proper settlement after injury is not valid.

L. C Caldwell, for appellant.

Long & Nicholson, for appellee.


The plaintiff, an employé of defendant company, alleged in his complaint that he was ordered by a conductor of one of the defendant's trains to make a coupling of an engine and a freight car, and in obeying the order was hurt through the negligence of the defendant, without fault of his own. In describing the manner in which he was injured, he further alleged "that the coupler on the engine was what was usually called a 'drawbar,' and of the weight of about 120 to 125 pounds, and of the length of about 5 or 6 feet; that one end of this drawbar was fastened to the engine, and the other end reached toward the front of the pilot, and in order to couple with this instrument it was necessary to raise the same about three feet, and attach the end thereof to the coupler of the car to which it was desired to make the coupling; that it was impossible to make the coupling without the brakeman getting on the pilot, in order to lift the drawbar and make the attachment; that on this occasion the plaintiff undertook to make this coupling under the direction of his superior, whose orders he was required to obey; and that this drawbar was one of the old-fashioned methods by which couplings were made." And as to the particular form of the defendant's negligence the plaintiff further alleged that his injuries were caused by the negligence of the defendant, in that it failed to furnish for said engine, and for the cars then and there in use upon its track at the said place, safe and suitable machinery equipments, and devices for the purpose of safely connecting, coupling, and operating the said engines and cars upon its said track, and with modern, self-coupling devices as required by law, and such failure continued up to the time of the injury received by plaintiff as aforesaid. On the contrary, the said engine and cars were provided with unsafe, defective, unwieldy, and unsuitable machinery, appliances, and devices, not adapted to or answering the purpose of safe use for which they were intended, as the defendant well knew. The defendant in its answer denied that it was negligent in the manner alleged by the plaintiff, and averred that the plaintiff was hurt by the careless and negligent manner in which he made the coupling. And for a further defense the defendant averred that, after the plaintiff was hurt, he, for a valuable consideration paid to him by the defendant, executed and delivered to the defendant a full release and discharge of all claims he had against the defendant on account of the injuries complained of in the complaint; and the defendant pleaded the release in bar and estoppel of the action. The errors assigned by the defendant were: First, because the court admitted incompetent and improper evidence, pointed out in the case on appeal; second, because the court refused to give certain special instructions asked by the defendant, and in giving certain special instructions asked by the plaintiff; and, third, because the court failed, as defendant contended, to state in a plain and correct manner the evidence given in the cause, and to declare and explain the law arising thereon, embracing an explanation of its nature, purpose, and bearing, etc., to prevent misapprehension by inadvertence and mistake.

The first of the defendant's prayers for instructions was, in substance, that his honor should tell the jury that if they should find that the car to which the engine was attempted to be coupled by the plaintiff, at the time of his injury, was equipped with an automatic coupler, such as that required by law, and that the engineer was capable, and operated his engine with care and caution, then the defendant would not be liable, because not negligent, and the first issue should be answered "No." It was properly refused. There was evidence tending to show that automatic couplers were in general use, and on the engines of the defendant company, and that the engine which the plaintiff undertook to link or couple with the freight car was the only engine of the defendant on that road that was not equipped with a self-coupler at that time. It was also in evidence that engines necessarily have to be coupled with cars, and it seems to us to be as essential that the same kind of a device in the way of a coupler should be attached to an engine as is attached to a car; the end and aim of the law being the protection, as far as possible, of the lives and limbs of persons in railroad employment.

In the defendant's second prayer for instructions, it desired the jury to be charged to answer the first issue "No," because this court, in the case of Greenlee v. Railway Co., 122 N.C. 977, 30 S.E. 115, 41 L. R. A. 399, 65 Am. St. Rep. 734, had declared May, 1898, as "the time" for the equipment of freight cars with automatic couplers. It was stated in the prayer that the plaintiff was hurt in October, 1897. It is not a fact that such time (May, 1898) was fixed as the beginning of the liability of railroad companies for not equipping their cars with automatic couplers. The plaintiff was injured in December, 1897. Greenlee was hurt in that same year (1897), but before the plaintiff was, and Greenlee's Case was heard in this court in 1898.

The third prayer was in these words: "If the jury should find from the evidence that the rules of the company forbade any employé to make coupling by going between cars, and should find that the plaintiff knew of such rule, and that he signed a paper positively prohibiting an employé from coupling by going between the cars, or any other way except with a stick, and the plaintiff, in violation of the same exposed himself to danger, and went between the car and the engine for the purpose of making the coupling, he would be guilty of contributory negligence, and the jury would answer the second issue 'Yes."' His honor properly refused to instruct as requested. The rule, taken literally, does not forbid the plaintiff from going between an engine and a car for the purpose of making the coupling. The prohibition is against coupling or uncoupling cars with a stick. The links and pins that connect cars are easily manipulated by a stick in the hands of a brakeman, who can stand away and from between the cars and make the coupling. That is a very different matter from the coupling of an engine and a car, where the coupler provided for the engine is a bar of iron five or six feet long and weighing from 100 to 125 pounds, lying across the pilot, and to be raised two or three feet in order to make the coupling. The plaintiff, as a witness in his own behalf, testified that he made the coupling in the usual way, and that, in order to get it (the drawbar) in position, "you have to raise it up,--one end of it; that you cannot raise it up without getting on the pilot; that...

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