Pigford v. Norfolk-Southern R. Co.

• Decision Date: 25 September 1912
• Parties: PIGFORD v. NORFOLK-SOUTHERN R. CO.
• Court: North Carolina Supreme Court

75 S.E. 860

160 N.C. 93

PIGFORD v. NORFOLK-SOUTHERN R. CO.

Supreme Court of North Carolina

September 25, 1912

Appeal from Superior Court, Craven County; Justice, Judge.

Action by T. H. Pigford against the Norfolk-Southern Railroad Company. From a judgment for plaintiff, defendant appeals. No error.

Latitude in permitting statements to be made in argument of counsel held to be indulged for the heat of argument.

Action for injuries alleged to have been caused by negligence. Plaintiff was employed by defendant, and, at the time he was hurt, was instructed by J. D. Spradlin, the supervisor and his superior officer, to load a gondola car with iron rails which had been twisted and bent in a wreck and were very crooked. Defendant told Spradlin that he would want more help. The situation may be better described in his own words "I told him I would want more help. I told him I had three men and my boy working with me, and I didn't think I had help enough to load it. He said: 'Go and try; do the best you can. It is the engineer's orders.' I went down and tried to load it; but I could not, and got hurt. We were loading up the rail on a slide; that car was about seven feet high. We had laid some pieces of rail for a slide, and was putting it up that way. The rail was top heavy. I was in the center of it, and we got it up about four feet high, and it turned over on me, and I felt something tear loose. I had hold of the rail. Q. Why did something tear loose? A. Because I was holding the rail with all my strength; that is about all. I got hurt, and we laid the rail down on the ground. Q. State why you got hurt. A. Because I was trying to hold the rail. It was crooked, and the rail was about to turn over in the center --about to fall. Both ends were about to fall, and if it fell it would turn over on the man; and I got hurt because I was trying to hold it up in that position (indicating what he meant)."

Plaintiff suffered a rupture, which was progressive in its nature, and resulted in serious and permanent injury. After he was first hurt, Spradlin furnished the help asked for, and he then performed the work assigned to him. Three issues were submitted to the jury as to negligence, contributory negligence, and damages. There was nothing said in the answer, nor was there any issue as to assumption of risk. The court charged the jury as to the duty of defendant to provide for its employé reasonably safe means and sufficient help to perform his work, and that if it had failed in this duty--the special act of negligence being the failure to furnish necessary or adequate help--and this was the proximate cause of plaintiff's injury, they would answer the first issue "Yes," and that if defendant undertook to do the work, after Spradlin had failed, upon proper application, to give him more help, and that a man of ordinary prudence would not have undertaken the performance of the task under the circumstances, or if defendant did not exercise ordinary care in the manner of doing the work, and either act of carelessness proximately caused the injury, they would answer the second issue "Yes"; the burden as to the first issue being upon the plaintiff, and as to the second upon the defendant. There was a verdict for plaintiff, and defendant appealed from the judgment thereon.

Moore & Dunn, of New Bern, for appellant.

Guion & Guion and D. L. Ward, all of New Bern, for appellee.

WALKER J. (after stating the facts as above).

The duty of the defendant to supply help sufficient for the safe performance of the work allotted to the plaintiff is not questioned by the appellant, but it is contended that if it failed to do so the plaintiff was guilty of such negligence in going on with the work, after the refusal to comply with his request, as bars his recovery; it being an act of contributory negligence on his part which was the proximate cause of the injury to him. We cannot assent to this proposition, except in a qualified sense. The doctrine of assumption of risk is dependent upon the servant's knowledge of the dangers incident to his employment and the ordinary risks he is presumed to know. But extraordinary risks, created by the master's negligence, if he knows of them, win not defeat a recovery, should he remain in the service, unless the danger to which he is exposed thereby is so obvious and imminent that the servant cannot help seeing and understanding it fully if he uses due care and precaution, and he fails, under the circumstances, to exercise that degree of care for his own safety which is characteristic of the ordinarily prudent man. 26 Cyc. 1196-1203. We consider the rule to have been settled by this court in Pressly v. Yarn Mills, 138 N.C. 410, 51 S.E. 69, and subsequent decisions approving it. Justice Hoke, for the court, in that case approving what had formerly been decided in Hicks v. Manufacturing Co., 138 N.C. 319, 50 S.E. 703, gave this clear statement of the rule, as deduced from the authorities: "While the employé assumes all the ordinary risks incident to his employment, he does not assume the risk of defective machinery and appliances due to the employer's negligence. These are usually considered as extraordinary risks which the employés do not assume, unless the defect attributable to the employer's negligence is obvious and so immediately dangerous that no prudent man would continue to work on and incur the attendant risks. This is, in effect, referring the question of assumption of risk, where the injury is caused by the negligent failure of the employer to furnish a safe and suitable appliance, to the principles of contributory negligence; but it is usually and in most cases desirable to submit this question to the jury on a separate issue as to assumption of risk, as was done in this case. When the matter is for the jury to determine on the evidence, it may be well to submit this question to their consideration on the standard of the prudent man, in terms as indicated above. The charge on the third issue substantially does this, and the language used is sanctioned by the authorities"--citing Sims v. Lindsay, 122 N.C. 678, 30 S.E. 19; Lloyd v. Hanes, 126 N.C. 359, 35 S.E. 611; Coley v. Railroad, 129 N.C. 407, 40 S.E. 195, 57 L. R. A. 817; Marks v. Cotton Mills, 135 N.C. 287, 47 S.E. 432.

There is a clearly marked line of divide between assumption of risk and contributory negligence, the former being confined to the ordinary perils of the service, and the servant could not be held by his contract, or upon any other ground, at least in a technical sense, to have assumed the risk of his master's negligence, as the contractual relation is the other way; the master impliedly undertaking, by the contract of service, to exercise proper care for the servant's safety by selecting reasonably fit and safe tools and appliances, and providing a reasonably safe place and a sufficient and competent force for the performance of the work, and, perhaps, other duties not necessary to be here enumerated. "'He complies with the requirements of the law in this respect if, in the selection of machinery and appliances and the employment of sufficient help, he uses that degree of care which a man of ordinary prudence would use, having regard to his own safety, if he were supplying them for his own personal use. It is culpable negligence which makes the employer liable, not a mere error of judgment. We believe this is substantially the rule which has been recognized as the correct one and recommended for our guide in all such cases. It measures accurately the duty of the employer and fixes the limit of his responsibility to his employé'--citing Harley v. B. C. M. Co., 142 N.Y. 31, 36 N.E. 813. So that the liability of the employer to the employé in damages for any injury the latter may receive while engaged in his work depends upon whether the employer has been negligent. Avery v. Lumber Co., 146 N.C. 592 ; Barkley v. Waste Co., 147 N.C. 585 ." Cotton v. Railroad, 149 N.C. 227, 62 S.E. 1093.

If therefore, the master is culpably negligent, and the servant receives an injury which the law will impute to that negligence as its proximate cause, the master will be held liable in damages, because the master's breach of duty was not by any means an ordinary peril of the service within the scope of the contract, but an extraordinary one, for which the master is liable, unless the servant's own negligence contributed to the injury, and is considered to be its proximate cause. If the master, by his own negligence, has brought about a dangerous condition with which the servant is confronted, the obviousness of the danger and the impression the situation would make upon a man of ordinary prudence and discretion, with respect to his own safety, would determine the servant's measure of duty to himself, which the law will require of him under the circumstances, always bearing in mind that, as the question of negligence is composed of law and fact, it is difficult, if not impossible, to extract from the authorities a rule so nicely and comprehensively expressed as to fit all cases. There is no such touchstone in the law by which we can try and test the legal quality of any act of negligence; but with the general principle in hand each case must be decided upon the facts peculiarly its own. Subject to the private act of 1897, c. 56 (Revisal, § 2646), the servant assumes only the ordinary and incidental risks of the service, those which necessarily and naturally, in the course of things, accompany it, and which exclude the idea of any negligence of the master; and if the master negligently injures him, he must show negligence of the servant, in order to defeat a recovery. In several recent cases this question has been considered favorably to the views herein...