Hancock v. Norfolk & W. Ry. Co.

• Decision Date: 21 March 1899
• Citation: 32 S.E. 679,124 N.C. 222
• Parties: HANCOCK v. NORFOLK & W. RY. CO.
• Court: North Carolina Supreme Court

32 S.E. 679

124 N.C. 222

HANCOCK v. NORFOLK & W. RY. CO.

Supreme Court of North Carolina

March 21, 1899

Appeal from superior court, Durham county; Timberlake, Judge.

Action by Whit Hancock against the Norfolk & Western Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Priv.Laws 1897, c. 56, making railroad companies liable to employees for injuries caused by negligence of fellow servants, is a public statute, and, though published among the private acts need not be pleaded.

Guthrie & Guthrie, for appellant.

Boone & Bryant, for appellee.

CLARK J.

The decision of this case depends upon chapter 56, Priv. Laws 1897,--"An act to prescribe the liabilities of railroads in certain cases." This statute, commonly known as the "Fellow Servant Act," was ratified on the 23d day of February, 1897, and provides:

"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."

The plaintiff was injured in the service of the defendant since the ratification of this act. The defendant contends that the injury was caused by the negligence of a fellow servant of the plaintiff, to wit, a brakeman on the passenger train, in leaving the switch open, whereby the hand car was derailed. Its counsel cites, inter alia, Ponton v. Railroad Co., 51 N.C. 245, Pleasants v. Railroad Co., 121 N.C. 492, 28 S.E. 267, and Wright v. Railroad Co., 122 N.C. 852, 29 S.E. 100, which sustain the contention that, if the injury was thus caused, the action could not have been maintained at common law. The defendant excepts as to above statute, which the judge held confers a right of action in such case, because: "(1) It is a private act, and, as such, under section 264 of the Code of North Carolina, it should have been pleaded. (2) Whether this act is public or private, it is unconstitutional and void when applied, in a case like this, to fellow servants of a 'railroad company operating in this state,' upon the ground that it 'undertakes to confer upon servants and employés of such companies separate and exclusive privileges from the rest of the community engaged in similar private employment, which are denied even to servants and employés of railroad construction companies and of street railroad and railroad bridge companies, and partnerships operating lumber and mining railroads, since its provisions are confined strictly to railroad companies,' and therefore violates article 1, § 7, of the constitution of the state."

As to the first ground of exception, the act is so plainly and clearly a public statute that it is a mystery why it was placed among the private acts. Kinney v. Railroad Co., 122 N.C. 961, 30 S.E. 313; Wright v. Railroad Co., 123 N.C. 280, 31 S.E. 652. But by whom and for what purpose this was done is immaterial. Whether a statute is private or public depends upon its contents, and not upon the conduct or judgment of the person who directs the compilation in which it shall be published. Durham v. Railroad Co., 108 N.C. 399, 12 S.E. 1040, and 13 S.E. 1. Indeed part of an act may be public and part thereof a private act. Being a public statute, the fact that it was printed among the private acts did not make it incumbent upon the plaintiff to plead it.

As to the second ground of exception, nothing in this case requires us to pass upon the questions, which cannot arise, upon the facts herein, whether the fellow servant act applies to street railroads, partnerships operating lumber and mining railroads, railroad construction companies, and railroad bridge companies, and whether the defendant can set up the defense of a knowledge of defective machinery by the plaintiff and assumption of risk. Beyond controversy, the plaintiff was in the employment of "a railroad company operating in this state" when injured. These matters may possibly come up for adjudication when the facts of some case present the question, but in the meantime "sufficient unto the day is the evil thereof."

As to the other question learnedly argued in the brief, whether, under the fellow servant statute, the defendant can plead contributory negligence on the part of the servant injured, there can be no doubt. The statute goes no further than to remove the defense that the injury was sustained by the negligence of a fellow servant. The defendant does not take his own argument on this point seriously; for, in fact, he sets up the plea of contributory negligence, and an issue thereon was submitted to the jury, and found in favor of the plaintiff.

We see no ground for the defendant's contention that the act in question violates article 1, § 7, of the North Carolina constitution, by "conferring exclusive privileges upon any set of men." The law exempting a master from liability to a servant for the negligence of a fellow servant is by judicial construction and of comparatively recent origin. Its history is traced in Hobbs v. Railroad Co., 107 N.C. 1, 12 S.E. 124. Its extent has been differently outlined in different states by judicial construction, and in several states it has been restricted by legislative enactment so as not to extend to employés of railroad companies, as has now been done in this state. As the original ground of the decision was that a servant knew the character for care of his...