Pyatt v. Southern Railway Co.

CiARicsoN, J.

The defendant, at the close of plaintiff’s evidence, and at the close of all the evidence, made motions for judgment as in case of nonsuit. O. S., 567. The court below overruled the motions, and in this we see no error. The defendant also in apt time, in writing, requested the court below to instruct the jury to answer the first issue “No” and the second issue “Yes.” O. S., 565. The court below refused to give these instructions, and in this we can see no error.

It is admitted that when the injury occurred defendant was engaged, and plaintiff was employed by defendant, in interstate commerce. The action must be determined by the Federal Employers’ Liability Act. Cole v. R. R., ante, 389.

“The decision of the United States Supreme Court upon the proper interpretation, construction, and effect of statutes regulating or affecting interstate and foreign commerce is conclusive upon all other tribunals when the same matters are called in question. And the decisions of the Federal courts are to be followed by the State courts, in the construction of the act.” Richey, Federal Employers’ Liability, (2 ed.), ch. 5, p. 33, sec. 20.

“Under section 1 of the act the employer 'is liable, other requisites being shown, for Injury or death resulting in whole or in x>art from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.’ The act does not give a cause of action to the employee for injuries not occasioned by negligence, and no recovery can be had under this act by simply showing the injury, and that at the time the injured servant was engaged in interstate commerce.” Richey, supra, p. 117-8; R. R. v. Horton, 233 U. S., 492, 59 Law Ed., 1062, 162 N. C., 424.

“By section 3 of the act it is provided that ‘no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation of such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.’ In other words, as to cases of this character, the defense of contributory negligence is wholly abolished.” Richey, supra, p. 150-1.

“By section 4 of the act of 1908, it is provided that: ‘In any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any ease where the violátion by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.’ The defenses of assumed risk and contributory negligence have frequently been referred to and discussed by courts without making any discrimination between them. This is doubtless due to the fact that both have heretofore been treated in law as complete defenses in suits for personal injuries, and there was no necessity for observing the technical legal distinction. And while of little consequence when both led to the same result, it becomes important in actions founded upon the Federal act, which in ordinary cases recognized assumption of risk as a complete bar to the action, while contributory negligence merely mitigates the damages. Nor is it to be supposed that Congress in enacting the statute was ignorant of the distinction, because it is only through a distinction between contributory negligence and assumption of risk being recognized, that any, but a contradictory meaning would be expressed by sections 3 and 4.” Eichey, p. 167; R. R. v. Horton, supra.

“The general rule of the Federal courts as to assumption of risk is stated in the case of Gila Valley, etc., R. Co. v. Hall, 232 U. S., 94, as follows: ‘An employee assumes the risk of dangers normally incident to the occupation in which he voluntarily engages, so far as these are not attributable -to the employer’s negligence. But the employee has a right to assume that his employer has exercised proper care with re^ spect to providing a safe place of work, and suitable and safe appliances for the work, and is not to be treated as assuming the risk arising from a defect that is attributable to the employer’s negligence, until the employee becomes aware of such defect, or unless it is so plainly observable that he may be presumed to have known of it. Moreover, in order to charge an employee with the assumption of a risk attributable to a defect due to the employer’s negligence, it must appear not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else such danger must have been so obvious that an ordinarily prudent person, under the circumstances, would have appreciated it.’ A servant on accepting employment assumes all the ordinary and usual risks and perils incident thereto. The ‘ordinary’ risks are those which are a part of the natural and ordinary method of conducting the business and wbicb are often recurring. The ‘usual’ risks are those which are common, frequent, and customary. Every risk which is not caused by a negligent act or omission on the part of the employer is an ordinary risk.” Richey, p. 117-8.

It appears from the record, and there seems to be no dispute, that J. E. Sigmon was the foreman or boss and alter ego of defendant company, whose orders and directions plaintiff was in duty bound to obey. Patton v. R. R., 96 N. C., 455; Thompson v. Oil Co., 177 N. C., 279; Davis v. Shipbuilding Co., 180 N. C., 74; Robinson v. Ivey, 193 N. C., 805.

From the law before stated, laid down by the Supreme Court of the United States, construing the Federal Employers’ Liability Act, it will be noted that recovery is based on negligence as it exists at common law. Cole v. R. R., supra.

The plaintiff’s evidence was to the effect that he was performing his duty in knocking the worn or defective rail loose with a hammer, as he was instructed by defendant’s alter ego to do. When striking it a few blows it did not come loose and he stepped over inside to see if a spike probably was not pulled, or sometimes the timber (cross-ties) was not sound, the tie plate was cut down and the rail would become wedged against the wood and the wood would have to be cut. When he was ordered to do the work, Sigmon, the boss, and the other member of the crew did not have the crow-bars under the center of the worn or defective rail to prize it. He didn’t know it was going to be moved by the crow-bars until he was struck. He was standing with his back to the foreman. He did not know that the rail was going to be thrown on him without warning — “I depended on warning.” The testimony of defendant’s witness, Sigmon, was to the contrary. The jury has taken plaintiff’s version of how he was injured and we are bound by their finding. The evidence was sufficient to be submitted to the jury on the question of negligence, assumption of risk and contributory negligence.

“A servant does not assume the extraordinary and unusual risks of the employment, and he does not assume the risks which would not have existed if the employer had fulfilled his contractual duties. But only those risks are assumed which the employment involves after the employer has done everything that he is bound to do for the purpose of securing the safety of his servants, that is, he does not assume the risk of injury from the negligence of the master.” Eichey, p. 179.

Defendant cited the following cases in support of its motion to non-suit, and for a directed verdict: Tuttle v. R. R., 122 U. S., 189; Aerkfetz v. Humphries, 145 U. S., 418; Boldt v. R. R., 245 U. S., 441; R. R. v. Nixon, 271 U. S., 218; R. R. v. Allen, 276 U. S., 169; R. R. v. Koske, 279 U. S., 11; R. R. v. Davis, 279 U. S., 37-8.

From an examination of tbe cases we do not think they are applicable to tbe facts in tbis case. Tbe defendant in its brief, quoting tbe Davis case, says: “Tbe principle enunciated in tbis case covers our case as witb a garment,” not from tbe finding of tbe jury taking plaintiff’s testimony to be true. From tbe orders given by tbe foreman for one of tbe laborers to go to tbe east and plaintiff to tbe west and knock tbe rail in or loose, plaintiff in tbe performance of tbis ordinary duty witb due care could presume tbat no other method, and especially one fraught witb danger to himself, would be resorted to, tbe use of crow-bars by tbe foreman and a helper, unless notice was given him. Tbe stepping in between tbe two rails to see why it did not release on knocking, a reason, being given, was not such assumption of risk tbat would as a matter of law bar a recovery. All of these were matters for tbe jury to determine.

Tbe question asked on cross-examination of defendant’s witness: “You tbink it is dangerous to shove a rail in witb crow-bars without warning all of tbe people within reach of it, tbat it would be dangerous ? Answer: ‘Well, it is dangerous all right.’ ” Plaintiff excepted to tbis, but made no assignment of error. Tbe exception cannot be considered, Rule 28, Rules of Supreme Court, 192 N. C., 853, yet we tbink it competent. Tbe witness was an employee of defendant. “Tbis is sometimes spoken of as tbe ‘shorthand statement of a fact,’ or as tbe statement of ‘a composite or compound fact,’ several circumstances combining to make another fact.” Marshall v. Telephone Co., 181 N. C., at 294. Our Court has allowed testimony to tbe effect tbat a different arrangement would have resulted in there being ‘a source of danger eliminated.’ ” Horne v. Power Co., 144 N. C., 378. Tbat “a double chain would be safer than tbe single one.” Britt v. R. R., 148 N. C., 41; tbat a car used in manufacturing iron was “defective,” Alley v. Pipe Co., 159 N. C., 327; tbat a voltage of 110 was not “dángerous,” Monds v. Dunn, 163 N. C., 110; tbat “I was walking just as careful as I could be.” Renn v. R. R., 170 N. C., at 141.

In McCord v. Harrison-Wright Co., 198 N. C., at p. 745, tbe following was held competent: “It was supposed to be cut off and dressed up, too, because it was dangerous.”

“When an inference is so usual, natural, or instinctive as to accord witb general experience, its statement is received as substantially one of a fact — part of tbe common stock of knowledge.” 22 C. J., p. 530; Street v. Coal Co., 196 N. C., at p. 183.

Tbe court below charged: “Now, there is another risk tbat an employee may assume, even though tbe injury is brought about by tbe negligence of tbe defendant, and tbat is where one is injured by tbe negligence of an employer where tbe result of tbe negligent act, tbe danger in wbicb be is working, is so open and obvious that be can see it, observe it, and know tbe danger, tbe probability of danger to bim-self, even if it is tbe result-of tbe negligence of tbe employer; wben tbe employee sees tbe defect,' sees tbe danger, faces tbe probability of danger to bimself, understands it, observes it, and tben if be continues to work under those conditions tbe law says be assumes tbe risk; tbat is, tbe probability' of injury to bimself, even tbougb tbe defendant might be negligent. (If tbe probability of danger is greater than tbat of safety, or if it is so open and apparent, and there is such probability of injury tbat a man of ordinary prudence would not work under those conditions and be continues to work under them, tbe law says that- be assumes tbe risk of tbe injury by continuing in tbe work, even tbougb it is brought about by tbe negligence of tbe employer. Tbat is what tbe law means by assumption of risk.)”

Tbe latter part, in parentheses, is excepted to and assigned as error by defendant. Taking tbe charge of tbe court below as a whole, and defendant’s prayers for instructions, among other phases, tbe following was given, viz.: “In tbe consideration of tbe second issue, tbe court instructs you tbat, tbe plaintiff in becoming a member of tbe defendant’s section crew assumed, under tbe contract of employment, all tbe ordinary risks, hazards, and dangers of bis employment and tbat, if be was injured in consequence of one of these ordinary risks, hazards, and dangers, tbat it would be your duty to answer tbe second issue, Yes.”

We cannot bold from tbe authorities in tbe Federal Courts on tbe facts in this case, tbat this assignment of error can be sustained. “Tbe principal element of assumed risk is knowledge. Of usual and ordinary risks this is presumed, but many of tbe risks previously noted as not being assumed, as negligence of tbe employer, and extraordinary risks, are assumed wben tbe employee with knowledge thereof continues bis employment without objection. This knowledge must be shown, and tbat the plaintiff appreciated or was bound to appreciate tbe risk. . . . But risks wbicb are open and obvious or wbicb in tbe exercise of ordinary care an employee would have discovered, be is presumed to know and assume. ’But by this it is not understood tbat tbe employee is under a duty to anticipate or take any precautions to discover a danger tbe result of negligence on tbe part of tbe employer or coemployees.” Richey, supra, p. 180-1-2-3. As to tbe rule in this jurisdiction, see Maulden v. Chair Co., 196 N. C., at p. 124.

Tbe court below defined negligence, proximate cause, assumption of risk and contributory negligence, and applied tbe law applicable to tbe facts. Tbe court below stated to tbe jury, “I am requested to give you some special instructions wbicb I give you as instructions from tbe court.” Tbe court gave eight pages of instructions prepared by defendant, setting forth the defendant’s contentions, covering every phase on each issue, and the charge on each issue was to the effect that the particular issue should be answered for defendant. The court gave in substance in the special instructions and in the charge substantially everything prayed for by defendant except nonsuiting plaintiff, and the prayer on all the evidence plaintiff could not recover. From the prayers asked for by defendant and given by the court below, the court “mighty near” charged plaintiff out of court. We do not think the charge subject to criticism under (Revisal, 535) C. S., 564.

The exception and assignment of error in reference to the charge as to “due care” cannot be sustained. This was premised on plaintiff’s evidence. We think if the charge is taken as a whole, with defendant’s prayers for instructions as given, and not disconnectedly, that in it there is no reversible or prejudicial error.

The court below seemed to have tried the case with “due care.” In law we find

No error.