Troxler v. Southern Ry. Co.

• Decision Date: 21 March 1899
• Parties: TROXLER v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

32 S.E. 550

124 N.C. 189

TROXLER v. SOUTHERN RY. CO.

Supreme Court of North Carolina

March 21, 1899

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

Action by S. H. Troxler against the Southern Railway Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Failure of a railroad to use automatic couplers in general use, on its freight cars, is negligence per se.

The extension by congress of the time within which all interstate railroads are required to use automatic couplers or suffer penalty does not affect a company's common-law liability to its employees for negligence in failing to use equipment for coupling which have come into general use.

F. H Busbee, for appellant.

C. M Stedman and D. Schenck, Jr., for appellee.

CLARK J.

The plaintiff was injured in attempting to couple cars of the defendant on which there were no automatic car couplers, but in lieu thereof skeleton drawheads, of unequal height. The court below held that the absence of automatic couplers, in general use, was negligence per se, and refused to submit an issue whether the injury was not caused by the negligence of a fellow servant, and refused to instruct the jury, as prayed, that the plaintiff was guilty of contributory negligence if he could, by proper care, have coupled the cars by hand without accident.

The duty to furnish proper and safe appliances is that of the common master, and injury caused by their absence cannot be attributed to the negligence of a fellow servant. Troxler v. Railway Co., 122 N.C. 902, 30 S.E. 117; Wright v Railway Co., 122 N.C. 959, 30 S.E. 348. It has been heretofore held, in Greenlee v. Railway Co., 122 N.C. 977, 30 S.E. 115, that failure of a railroad company to equip its freight cars with modern self-coupling devices is negligence per se, continuing up to the time of an injury sustained by an employé in coupling cars by hand, and renders the company liable, whether such employé was negligent in the manner of making the coupling or not. The same ruling had been previously made as to the duty of furnishing automatic car couplers on passenger trains in Mason v. Railroad Co. (1892) 111 N.C. 482, 16 S.E. 698. Where the negligence of the defendant is a continuing negligence (as the failure to furnish safe appliances, in general use, when the use of such appliances would have prevented the possibility of the injury), there can be no contributory negligence which will discharge the master's liability. This has been repeatedly and uniformly held. Norton's Case, 122 N.C. 911, 29 S.E. 886: McLamb's Case. 122 N.C 873, 29 S.E. 894; Cone v. Railroad Co., 81 N.Y. 206. The failure to provide the necessary appliances is the causa causans. The defendant, however, frankly asks us to reconsider and overrule Greenlee's Case. That case was the expression of no new doctrine, but the affirmation of one as old as the law, and founded on the soundest principles of justice and reason, to wit: That when safer appliances have been invented, tested, and have come into general use, it is negligence per se for the master to expose his servant to the hazard of life or limb from antiquated and defective appliances which have been generally discarded by the intelligence and humanity of other employers. Witsell v Railway Co., 120 N.C. 557, 27 S.E. 125. This must be so, if masters owe any duties to their employés, and unless economy of expenditures on the part of the railroad management is to be deemed superior to the conservation of the lives and limbs of those employed in their operation. In the twelfth annual report of the interstate commerce commission (1898), published by authority of the United States government, upon returns made by the railroad companies themselves, it is stated (at page 88): "Since the enactment of the law in 1893 [requiring automatic couplers] there has been a decreasing number of casualties. There were 1,034 fewer employés killed, and 4,062 fewer injured, during the year ending June 30, 1897, than during the same period in 1893. The importance of this subject will be realized when the yearly casualties to railway employés are compared with those which occurred during the recent war. In the Spanish-American war there were 298 killed and 1,645 wounded. In 1897, there were 1,693 men killed and 27,667 injured, from all causes, in railway service. From coupling and uncoupling cars alone 219 less were killed, and 4,994 less were injured, in 1897 than in 1893, when the law was enacted. The number of such employés killed has been reduced one-half, and the number of injured, also, practically reduced one-half. The reduction in the number of accidents from all causes largely exceeded (by nearly three to one), in a single year, the entire casualties resulting from the prosecution of the late war." Thus, in four years from 1893 to 1897, notwithstanding the increase of thousands of miles of railways, and over 100,000 of employés, and the further fact that the railroad corporations have been able to procure from the interstate commerce commission an extension of the time at which the law of congress imposing a penalty for operating any cars without self-couplers will come into force, the shadow of the law has procured so general an attachment of these self-couplers that 5,213 fewer employés were killed...