Johnson v. The Richmond & Danville R.R. Co.

• Decision Date: 30 June 1879
• Citation: 81 N.C. 453
• Court: North Carolina Supreme Court
• Parties: SAMUEL JOHNSON v. THE RICHMOND & DANVILLE RAILROAD COMPANY.

81 N.C. 453

SAMUEL JOHNSON

v.THE RICHMOND & DANVILLE RAILROAD COMPANY.

Supreme Court of North Carolina.

June Term, 1879.

OPINION TEXT STARTS HERE

CIVIL ACTION for Damages tried at Spring Term, 1879, of GUILFORD Superior Court, before Buxton, J.

The plaintiff was a brakeman in the employ of the defendant company, and was injured by a fall from a freight car, caused by the breaking of the rod of a brake attached to the car, while he was operating it. The rod was alleged to be defective, and the plaintiff insisted that it was negligence in the company in not repairing the same, thereby causing the accident and the consequent injury.

Upon the trial the defendant asked the court to charge the jury, that the plaintiff should have inspected the machinery in his department, and it was his duty to see that the same was sufficient; and his failure to inspect the brake, or to use it after inspection, if found to be unsafe, is contributory negligence, and he is not entitled to recover. The court declined to give the instruction as asked, but gave it with the following qualification: “Provided the plaintiff had the opportunity to inspect.” The defendant then asked for the following instruction: “If defendant in the first instance used reasonable and ordinary care in the manufacture of the machinery, and it became defective without notice to defendant, the company is not liable.” The court also qualified this prayer: “Provided the defendant had competent inspectors.” To both of which the defendant excepted.

Issues submitted to the jury.

1. Did the company use proper care in furnishing the machinery when the car was built in 1873? Ans--It did.

2. Did the company have in its employment at Charlotte, the place from which the car started on the morning of the injury, competent inspectors whose duty it was to inspect the machinery and pronounce it road-worthy? Ans--No.

3. Was the defect such as to unfit it for use? Ans--Yes.

4. Did defendant have notice of the defect? Ans--No.

5. Could plaintiff by ordinary care have avoided the injury? Ans--No.

6. Did plaintiff know or have reasonable opportunity to inform himself of the defect; if so, did he remain in the service thereafter? Ans--No.

7. Was the defect unknown to both parties? Ans--Yes.

8. Was it such as an ordinary careful observer would not discover? Ans--Such an observer would have discovered it.

9. Was plaintiff injured by reason of a defective brake attached to defendant's car? Ans--Yes.

10. Was plaintiff guilty of contributory negligence? Ans--No.

11. To what damage is plaintiff entitled? Ans--$800.

Upon the issues and findings, the defendant moved for judgment on the ground that the special findings were such that the court could not proceed to judgment for plaintiff. The motion was refused, judgment for plaintiff, appeal by defendant.

Mr. Thomas Ruffin, for plaintiff :

A master does not fill the full measure of his duty to his servant simply by furnishing safe machinery at the outset. He must see to it, either himself or through some competent agent, that it is kept secure. Lanning v. N. Y. R. R. Co., 49 N. Y., 521. The duty of the master, as implied by the law, requires that the servant shall be under no risks from imperfect machinery, or from unskilful and incompetent fellow-servants. It is a duty of contract to be affirmatively and positively fulfilled and performed; and there is not a performance of it until there has been prepared for the servant's use perfect and adequate means, and fit and competent fellow-servants, or due care used to that end. That some agent who has been authorized to act for the master has failed to do his duty, neither shows a performance by the master, nor excuses his non-performance. It is for the master to do by himself or some one else, and when it is done and not until then, is his duty met, or his contract kept. In R. R. Co. v. Barber, 5 Ohio St. Rep., 541, it is held that where the defect is unknown to both parties and neither party is at fault, the master is not liable; but that if the master is at fault, he is liable, though the defect were unknown to him. And the same case decides that it is negligence in the master if he omit to employ suitable agents to keep the machinery in repair.

Mr. J. E. Boyd, for defendant :

It was plaintiff's duty to see that the brake was in a suitable condition for use, and defendant is not liable for injury resulting from defect in machinery in plaintiff's department. Crutchfield v. R. R. Co., 76 N. C., 320; Ill. R. R. Co. v. Jewell, 46 Ill. Rep., 99. It is a good defence to show that the injury so far arose from the plaintiff's negligence, that he might with ordinary care have avoided the injury. Sedg. on Damages, 105. Want of ordinary care in plaintiff prevents his recovery in this action. Rice v. Powell, 44 Mo., 436; Mercer v. R. R. Co., 23 La. Rep., 264. Company only liable where plaintiff is without fault. 5 Ohio St. Rep., 541; Redfield on Railways, 546. Actual notice of defects to master, necessary. McMillan v. R. R. Co., 20 Barb., 449; R. R. Co. v. Thomas, 42 Ala. Rep., 672.

SMITH, C. J.

The plaintiff was employed as a brakeman on the defendant's railroad, and upon a signal from the engineer was in the act of applying the brake, when the upright rod gave way, precipitating him to the ground and inflicting the injuries for the redress of which the suit is brought.

The defect in the rod was an ancient flaw or crack extending obliquely about two-thirds into its body, and the rod at this point was insufficient to bear the strain. Issues were submitted to the jury and their findings establish the following facts: The defendant exercised proper care in the construction of the rod. There were no inspectors or officers at the place of starting, in the defendant's employ, to examine and report...