HoKe, J.,
after stating tbe case: In tbe cases of
Greenlee
and Troxler, both being actions to recover for injuries inflicted on employees by tbe negligent failure of railroad companies to furnish their cars with automatic couplers, tbe principle was announced that such a failure would amount to continuing negligence on tbe part of tbe companies which would shut off tbe defense of contributory negligence and assumption of risk.
In
Greenlee's
case, reported in 122 N. C., 977, it was held:
(a)
“Tbe failure of a railroad company to equip its freight cars with modem self-coupling devices is negligence
per
se, continuing up to- tbe time of an injury received by an employee in coupling the cars by hand, for which the company is liable whether such employee contributed to such injury by his own negligence or not.
(b) “The former decisions of this Court touching upon the duties of railroads to' provide modern appliances by coupling cars otherwise than by hand and foreshadowing the early holding that the failure to do so would be negligence
per
se, and the act of Congress (27 U. S. Statutes at Large, p. 531) requiring self-couplers to be placed on all cars by 1 January, 1898, and the general adoption by railroads of such self-couplers, made it the duty of defendant to adopt such devices, and its failure to do so, whereby an employee was injured, was negligence
per se.
(c) “The fact that an employee remains in the service of a railroad company, knowing that its freight cars are not equipped with self-couplers, does not excuse the railroad from liability to such employee if injured while coupling its cars by hand, the doctrine of 'assumption of risk’ having no application where the law requires the use of new appliances to secure the safety of employees and the employee, being either ignorant of the law’s requirement or expecting daily compliance with it, continues in the service with the old appliances.”
In
Troxler’s
case, reported in 124 N. C., 189, it was held:
(1) “Reason, justice and humanity, principles of the common law, irrespective of Congressional enactment and Interstate Commerce Commission regulation, require the employer to furnish to the employee safe modern appliances with which to work, in place of antiquated, dangerous implements, hazardous to life and limb; and the failure to do so, upon injury ensuing to the employee, is culpable, continuing negligence on the part of the employer, which cuts off the defense of contributory negligence and negligence of a fellow-servant, such failure being the
causa causans.
(2) “It is negligence
per se
in any railroad company to canse one of its employees to risk his life and limb in making couplings which can be made automatically without risk.”
In
Hicks v. Manufacturing Co.,
138 N. C., 331, it was. said that both of these cases were, approved; and further, that the principle therein announced would be further applied in cases of like peril and circumstance; and we think it should be applied here.
The defendant company, being a large industrial plant, in connection therewith, and as part of same, has constructed and owns, in and around its plant at Old Fort, N. C., 12 to 14 miles of railroad track, standard gauge, on which it operates with its own crew, engines and cars, and also the railroad cars of other companies carrying to that point the material required for its purpose. It is an enterprise of unusual extent and proportions, no doubt doing more hauling than many of the logging roads, which have been held as railroads under our decisions, and more shifting and coupling and uncoupling of cars than would be done on the same or much greater quantity of mileage in the operation of a regular railroad.
The track being situated on a level bottom in and around its plant, there would seem to be no difficulty in the procurement and use of these coupling devices, and at comparatively small cost, by means of which these cars could be coupled automatically and without risk; and the Judge below was correct in charging the jury that the failure on the part of the company to equip its cars with automatic couplers was negligence, and that if such failure was the proximate cause of plaintiff’s injury they would answer the first issue “Yes.”
The jury, under the charge, having found this issue against the defendant under the principles established in the
Greenlee
and
Troxler
cases, both the defenses of assumption of risk, which ordinarily includes the negligence of a fellow-em
ployee, and that of contributory negligence, are closed to defendant, and any issues addressed to these questions become immaterial and irrelevant unless, perhaps, the negligent conduct' of the injured employee should amount to recklessness.
Again, we have held at the present term, in
Bird v. Leather Co.,
that the act known as the Eellow-servant Act, being Re-visal, sec. 2646, applies to the railroad of defendant company, citing
Hemphill v. Lumber Co.,
141 N. C., 487.
This statute, among other things, enacts that any employee of a railroad who is injured in the course of his service or employment by the negligence of a fellow-servant or by reason of any defect in the machinery, ways or appliance of the company, shall be entitled to maintain an action, and that any contract of an employer, express or implied, to waive the benefit of this section shall be void.
This statute, in express terms, shuts off the defense of injury by negligence of a fellow-servant, which was formerly open to defendant. And in
Coley’s case,
129 N. C., 407, it was held that in cases where same applied, it barred all defenses by reason of assumption of risk unless the “apparent danger was so great that its assumption amounted to reckless indifference to probable consequences.” There was no recklessness here, nor was there any evidence tending to establish it. On the, contrary, the plaintiff appears to have been doing as well as could be done with the appliance given him; and he testified that if he had gotten down on the ground and under the car to pick up the pin, his injury, in all probability, would have been much more serious.
These two defenses, then, being withdrawn from defendant, both under the decisions in
Greenlee
and
Troxler
and by the construction "put upon the statute in
Coley’s case, supra,
the numerous exceptions addressed to these questions become immaterial, and the only defense open to defendant on the
facts presented was whether plaintiff was injured in the course of his service and employment.
The principles held to be controlling in this case, both in the decisions and by the statute, apply only for the protection of employees' who are wrongfully injured in the- course of their employment.
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HoKe, J.,
after stating tbe case: In tbe cases of
Greenlee
and Troxler, both being actions to recover for injuries inflicted on employees by tbe negligent failure of railroad companies to furnish their cars with automatic couplers, tbe principle was announced that such a failure would amount to continuing negligence on tbe part of tbe companies which would shut off tbe defense of contributory negligence and assumption of risk.
In
Greenlee's
case, reported in 122 N. C., 977, it was held:
(a)
“Tbe failure of a railroad company to equip its freight cars with modem self-coupling devices is negligence
per
se, continuing up to- tbe time of an injury received by an employee in coupling the cars by hand, for which the company is liable whether such employee contributed to such injury by his own negligence or not.
(b) “The former decisions of this Court touching upon the duties of railroads to' provide modern appliances by coupling cars otherwise than by hand and foreshadowing the early holding that the failure to do so would be negligence
per
se, and the act of Congress (27 U. S. Statutes at Large, p. 531) requiring self-couplers to be placed on all cars by 1 January, 1898, and the general adoption by railroads of such self-couplers, made it the duty of defendant to adopt such devices, and its failure to do so, whereby an employee was injured, was negligence
per se.
(c) “The fact that an employee remains in the service of a railroad company, knowing that its freight cars are not equipped with self-couplers, does not excuse the railroad from liability to such employee if injured while coupling its cars by hand, the doctrine of 'assumption of risk’ having no application where the law requires the use of new appliances to secure the safety of employees and the employee, being either ignorant of the law’s requirement or expecting daily compliance with it, continues in the service with the old appliances.”
In
Troxler’s
case, reported in 124 N. C., 189, it was held:
(1) “Reason, justice and humanity, principles of the common law, irrespective of Congressional enactment and Interstate Commerce Commission regulation, require the employer to furnish to the employee safe modern appliances with which to work, in place of antiquated, dangerous implements, hazardous to life and limb; and the failure to do so, upon injury ensuing to the employee, is culpable, continuing negligence on the part of the employer, which cuts off the defense of contributory negligence and negligence of a fellow-servant, such failure being the
causa causans.
(2) “It is negligence
per se
in any railroad company to canse one of its employees to risk his life and limb in making couplings which can be made automatically without risk.”
In
Hicks v. Manufacturing Co.,
138 N. C., 331, it was. said that both of these cases were, approved; and further, that the principle therein announced would be further applied in cases of like peril and circumstance; and we think it should be applied here.
The defendant company, being a large industrial plant, in connection therewith, and as part of same, has constructed and owns, in and around its plant at Old Fort, N. C., 12 to 14 miles of railroad track, standard gauge, on which it operates with its own crew, engines and cars, and also the railroad cars of other companies carrying to that point the material required for its purpose. It is an enterprise of unusual extent and proportions, no doubt doing more hauling than many of the logging roads, which have been held as railroads under our decisions, and more shifting and coupling and uncoupling of cars than would be done on the same or much greater quantity of mileage in the operation of a regular railroad.
The track being situated on a level bottom in and around its plant, there would seem to be no difficulty in the procurement and use of these coupling devices, and at comparatively small cost, by means of which these cars could be coupled automatically and without risk; and the Judge below was correct in charging the jury that the failure on the part of the company to equip its cars with automatic couplers was negligence, and that if such failure was the proximate cause of plaintiff’s injury they would answer the first issue “Yes.”
The jury, under the charge, having found this issue against the defendant under the principles established in the
Greenlee
and
Troxler
cases, both the defenses of assumption of risk, which ordinarily includes the negligence of a fellow-em
ployee, and that of contributory negligence, are closed to defendant, and any issues addressed to these questions become immaterial and irrelevant unless, perhaps, the negligent conduct' of the injured employee should amount to recklessness.
Again, we have held at the present term, in
Bird v. Leather Co.,
that the act known as the Eellow-servant Act, being Re-visal, sec. 2646, applies to the railroad of defendant company, citing
Hemphill v. Lumber Co.,
141 N. C., 487.
This statute, among other things, enacts that any employee of a railroad who is injured in the course of his service or employment by the negligence of a fellow-servant or by reason of any defect in the machinery, ways or appliance of the company, shall be entitled to maintain an action, and that any contract of an employer, express or implied, to waive the benefit of this section shall be void.
This statute, in express terms, shuts off the defense of injury by negligence of a fellow-servant, which was formerly open to defendant. And in
Coley’s case,
129 N. C., 407, it was held that in cases where same applied, it barred all defenses by reason of assumption of risk unless the “apparent danger was so great that its assumption amounted to reckless indifference to probable consequences.” There was no recklessness here, nor was there any evidence tending to establish it. On the, contrary, the plaintiff appears to have been doing as well as could be done with the appliance given him; and he testified that if he had gotten down on the ground and under the car to pick up the pin, his injury, in all probability, would have been much more serious.
These two defenses, then, being withdrawn from defendant, both under the decisions in
Greenlee
and
Troxler
and by the construction "put upon the statute in
Coley’s case, supra,
the numerous exceptions addressed to these questions become immaterial, and the only defense open to defendant on the
facts presented was whether plaintiff was injured in the course of his service and employment.
The principles held to be controlling in this case, both in the decisions and by the statute, apply only for the protection of employees' who are wrongfully injured in the- course of their employment.
If this plaintiff went out of the line of his service and employment, and, in disobedience to the orders of his superior, officiously undertook to couple and uncouple cars, when it was no part of his duty to do so: in that event, both of these defenses would be open to defendant, and a different rule of responsibility would attach.
The evidence was conflicting on this question: that of the plaintiff tending to show that plaintiff, at the time of the injury, was acting in the course of his employment; on the part of defendant, that plaintiff was acting out of the line of his duty, in disobedience to the express orders of his foreman.
The Court very properly submitted a separate issue as to this matter, and under a charge as favorable as defendant could expect, or had any right to ask, the jury have decided the question in favor of plaintiff; and this being true, under the principles discussed, and on the testimony, the plaintiff has a clear right of action.
.There is nothing here said which conflicts in any way with the case of
Elmore v. Railway,
132 N. C., 865. In that case, the Court, in sustaining a recovery had by plaintiff in the Court below, where a defendant had negligently failed to keep its cars supplied with automatic couplers which would work, held that the charge of the trial Judge was sufficiently favorable to defendant, the same being as follows:
“If plaintiff knew that the coupler was out of order, and that it was too dangerous to go between the cars to couple, and that plaintiff used his foot to make the coupling, and that by
reason of his position he acted foolishly and without prudence with reference to the character of the work, and that this act was carelessness, the chances of safety being less in favor of him than against him, he would be guilty of contributory negligence, even if defendant knew of the defective condition of the coupler.”
As said by the Court, this is sufficiently favorable to the defendant, for it is the rule which applies in ordinary cases of contributory negligence and assumption of risk.
Hinshaw v. Railroad,
118 N. C., 1047. But in cases like the present, involving the principles established by the cases of
Gi'eenlee
and
Troxler
and
Coley's case,
where same applies, the correct rule is held to be as indicated in this opinion.
There is no error, and the judgment below is affirmed.
No Error.