Leak v. Carolina Central Railroad , 124 N.C. 455 ( 1899 )

The plaintiff was a brakeman and switchman, and his contention is that, in attempting in the discharge of his duties to get on a car while in slow motion, the "stirrup" under the corner of the car, provided for his use, was defective, and when he put his foot upon it, gave way, precipitating him on the rail whereby his foot was crushed by the car wheel. The court properly instructed the jury that the fact that this was a "foreign car (i. e., a car belonging to another road) was no defense, for it was the defendant's duty to have such a car as well as its own inspected before using it for passengers or employees, and its liability for defects is the same in both cases. Mason v. R. R., 111 N.C. 482; Miller v. R. R.,99 N. Y., 657; Jones v. R. R., 92 N.Y. 628. Indeed, the plaintiff could sue both companies (R. R., v. Snider, 60 Am. State Rep., 700), and if it was the fault of the first company the latter could recover against it. Moore v. R. R., 24 Am. State Rep., 194. In Johnson v. R. R., 81 N. (458) C., 453, where a brakeman was injured by the breaking of the rod from a defect discoverable upon an ordinarily careful inspection, but which was unknown both to plaintiff and defendant, and the plaintiff had no reasonable opportunity for inspection, it was held that the defendant was liable because it had failed to have the rod inspected. Here, the plaintiff, hastily mounting the car in the performance of the duties required of him, had no time or opportunity to inspect the stirrup before putting his foot on it, and was not liable for contributory negligence unless it had been palpably defective, as broken and hanging down.

But we think that the third prayer for instruction given by the court at the request of the plaintiff, was too general in its terms and therefore liable to mislead the jury. It is as follows: "That the law imposes upon the employer the duty of exercising greater care of protecting the employee from injury due to the defective condition of appliances than is required of the employee in guarding against accident." This may or may not be true, according to circumstances. The true rule is that both are bound to use reasonable care — such care as a prudent man would ordinarily use under similar circumstances; and the relative degree of care required depends upon a consideration of all the circumstances surrounding the respective parties. This is nearly always a mixed question of law and fact to be determined by the jury under proper instructions from the court.

For this error in the charge of his Honor,

NEW TRIAL.

Cited: Cotton v. R. R., 149 N.C. 231; West v. Tanning Co., 154 N.C. 48;Terrell v. Washington, 158 N.C. 290; Kime v. R. R., 160 N.C. 462;Ridge v. R. R., 167 N.C. 522; Deligny v. Furniture Co., 170 N.C. 202.

(459)