The plaintiff, at the time of the injury, had been employed by the defendant as engineer for a period of six years, and as fireman for three or four years prior to this promotion.
The engine, No. 752, which plaintiff was operating, was equipped with a patented water glass, called the Buckner Water Glass, which was so constructed that a thick guard glass was placed over the front of the water glass to protect the eyes of the engineer in the event the inner glass should explode. The engine was also equipped with an alternative method of determining the amount of water in the boiler by means of gauge cocks.
The plaintiff was called on to take this engine 27 July, 1910, and on 4 August, 1910, while engaged in shifting cars at Apex, N.C. the water glass exploded and injured his eye. Immediately after the explosion the fireman cut off the gauge glass at top and bottom, and the engine was operated to Raleigh with the gauge cocks as the means of determining the amount of water in the boiler.
The guard glass referred to as part of the Buckner equipment is a thick piece of glass 2 or 3 inches wide and 8 or 9 inches long, with a
thickness of a quarter or three-eighths of an inch, according to plaintiff's testimony, and is detached from the gauge, being placed in slots arranged for the purpose of holding it. The Buckner gauge is a brass tube, with an opening in front and containing a small glass tube.
The plaintiff testified that "the shield or guard glass is important as a protection to the engineer's eyes; that is all it is for." "I knew the shield was gone, and I knew it was put there for the safety of anybody in the engine."
The plaintiff also testified that after taking out the engine on 27 July, 1910, he returned on 28 July, 1910, and then told the roundhouse foreman of the defendant, to whom reports of defects ought to have been made, that the shield or guard glass was gone, and he wanted one, and that the foreman replied that they had none in stock; to run the engine as it was, and he would send to Portsmouth and get him one; that he knew there was some danger in operating without a shield or guard glass, but that he was told by the foreman to go ahead without it, and if he had not done so, he would have lost his job. the foreman denied that any objection or complaint was made to him.
There was evidence by the defendant tending to prove that it was the duty of the plaintiff to shut off the water glass, when he discovered the absence of the shield or guard glass, and to run with the gauge cocks, and that this could be done without danger and successfully.
The defendant requested the following instructions on the issue as to assumption of risk, and excepted to the refusal to give them as requested:
"1. The court charges you that if you believe the evidence the plaintiff assumed the risks of the injury from the explosion of the water glass, and you will answer the second issue `Yes.'
"2. The right of the plaintiff to recover damages in this action (427) is to be determined by the provisions of the Federal Employers' Liability Act, enacted by Congress at the session of 1908, and the court charges you that if you find by a preponderance of evidence that the water glass on the engine on which plaintiff was employed was not provided with a guard glass, and the condition of the glass was open and obvious and was fully known to the plaintiff, and he continued to use such water glass with such knowledge and without objection, and that he knew the risk incident thereto, then the court charges you that the plaintiff voluntarily assumed the risk incident to such use, and you will answer the second issue `Yes.'
"3. If you find by the greater weight of the evidence that the water glass was defective, and that the plaintiff knew of the condition of the water glass on the engine, and the danger incident to its use, and that there was open to him a safe way of operating the said engine by using
the gauge cocks, and that he voluntarily used the water glass in operating the engine, the court charges you that the plaintiff assumed the risk of injury from the use of the water glass, and you will answer the second issue `Yes.'
"4. If you answer the first issue `Yes,' then the court charges you that if you find by the preponderance of the evidence that the plaintiff knew of the condition of the water glass on the engine and that he could have shut off the glass and operated his engine with safety by using the gauge cocks on the said engine, and that the plaintiff, with such knowledge, failed to shut off the glass and use the gauge cocks, then the court charges you that the plaintiff assumed the risk of injury, and you will answer the second issue `Yes.'
"5. If you answer the first issue `Yes,' then the court charges you that if you find by a preponderance of the evidence that the absence of the guard to the glass water gauge was open and obvious and was fully known to the plaintiff, and he continued to use the said glass with such knowledge, and that the plaintiff reported the defect and was given a promise to repair, and you further find that the plaintiff knew and appreciated the danger incident thereto, and that the danger was so obvious that a man of ordinary prudence would not have continued to use the gauge without the guard glass, then the court charges you that the plaintiff assumed the risk, and you will answer the second issue `Yes.'"
The jury returned the following verdict:
1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.
2. If so, did the plaintiff assume the risk of injury, as alleged in the answer? Answer: No.
3. Did the plaintiff by his own negligence contribute to his injury, as alleged in the answer? Answer: Yes.
4. What damages, if any, is the plaintiff entitled to recover? Answer: $7,500.
Judgment was entered upon the verdict. the defendant appealed.
This action is to recover damages under the Federal Employers' Liability Act, and the principal question raised by the appeal is as to the application of the doctrine of assumption of risk.
The act abolishes contributory negligence as a defense, and instead introduces the doctrine of comparative negligence, and it has the following provision as to assumption of risk:
"SEC. 4. 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 case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee."
It is contended by the defendant, and may be conceded, that the term "any statute" in the section quoted means any Federal statute, and that the assumption of risk is to be applied by a construction of the whole statute and under the rules laid down by the Supreme Court of the United States.
Statutes should receive a construction as will accord with (429) the legislative intention as gathered from the whole act, (McKeev. U.S., 164 U.S. 287), and when the act under consideration is so construed, it is at least debatable whether assumption of risk should be admitted as a defense in any action brought under its provisions. It says that contributory negligence on the part of the employee (that is, negligence which proximately causes the injury, because no other negligence is contributory) "shall not bar a recovery," and it would appear to be incongruous to admit as a defense assumption of risk which is based upon the fiction that the employee has assented to assume the risk of the particular injury, and when the facts relied on to prove assumption of risk generally enter into and are a part, but not all, of those necessary to sustain a plea of contributory negligence.
Mr. Justice Holmes considers the converse of this proposition inSchlemmer v. R. R., 205 U.S. p. 1, in discussing a statute which abolished assumption of risk and admitted contributory negligence as a defense, and he points out the distinction between the two, and shows that the latter usually includes the former, and he also sounds the note of warning, which may well be applied here, that under statutes so framed one plea may be abolished by name and be reinstated under another name. He says: "Assumption of risk in this broad sense shades into negligence as commonly understood. Negligence consists in conduct which common experience or the special knowledge of the actor shows to be so likely to produce the result complained of, under the circumstances known to the actor, that he is held answerable for that result, although it was not certain, intended, or foreseen. He is held to assume the risk upon the same ground. R. R. v.McDade, 191 U.S. 64, 68. Apart from the notion of contract, rather shadowy as applied to this broad form of the latter conception, the practical difference of the two ideas is in the degree of their proximity to the particular harm. The preliminary conduct of getting into the dangerous employment or relation is said to be accompanied by assumption of the risk. The act more immediately leading to a specified accident is called negligent. But the difference between the two is one of (430) degree rather than of kind; and when a statute exonerates a servant from the former, if at the same time it leaves the defense of contributory negligence still open to the master (a matter upon which we express no opinion), then, unless great care be taken, the servant's rights will be sacrificed by simply charging him with assumption of the risk under another name."
In the case before us, to sustain the plea of assumption of risk, the defendant undertook to prove that the plaintiff continued at work, without objection, having a knowledge of the defect and apprehension of the danger, and to sustain the plea of contributory negligence it relied on the same facts, and the additional one that the plaintiff neglected to shut off the water glass and to use the gauge cocks.
But however this may be, we will consider the question presented from the standpoint of the defendant, and as we have not been referred to any Federal statute as to defective appliances, the violation of which contributed to the plaintiff's injury, we will assume that the defendant is entitled to the benefit of the doctrine of assumption of a risk as declared by the Supreme Court of the United States, and will undertake to apply that doctrine to this case.
That Court enforces the rule that it is the duty of the employer to provide reasonably safe and adequate machinery and appliances for the use of the employee and to keep and maintain them in such condition, and that a failure to perform this duty is negligence. Gardner v. R. R.,150 U.S. 349.
It also holds that the employee assumes the ordinary risks incident to his employment, and that if he continues to work, without objection, having knowledge of a defect and an apprehension of danger, and is injured, that this is one of the ordinary risks of his employment. R. R. v. McDade,135 U.S. 570.
But it also holds that negligence of the employer is an extraordinary risk, which the employee does not assume, the Court saying in R. R. v.McDade, 191 U.S. 67: "The servant assumes the risk of dangers incident to the business of the master, but not of the latter's negligence. The question of assumption of risk is quite apart from that of contributory negligence. The servant has the right to assume that the master
had used due diligence to provide suitable appliances in the operation of his business, and he does not assume the risk of the (431) employer's negligence in performing such duties."
We have it then established that the employer is negligent if he fails to provide reasonably safe machinery and appliances, and to keep them in repair; that the employee assumes the risk if he continues to work in the presence of a known defect without objection, and that the employee does not assume the risk of the negligence of the employer.
There is some difficulty in applying these rules to a given case, because if it is the duty of the employer to repair, and a breach of that duty is negligence, and if the employee does not assume the risk of the negligence of the employer, it would seem to be contradictory to say that the employee may assume the risk of an injury caused by a failure to repair.
This apparent conflict is reconciled by imposing upon the employee, if he wishes to be relieved from assumption of risk, the duty of making complaint when he knows of a defect, or could discover it by the exercise of ordinary care, and by referring his conduct, when he does complain, to the principles of contributory negligence, at least for a reasonable time.
The decision in the leading case of Hough v. R. R., 100 U.S. 216, which discusses particularly the assumption of the risk of the negligence of a fellow-servant, rests upon this principle. In that case the evidence tended to show that the engine of which deceased had charge, coming in contact with an animal, was thrown from the track over an embankment, whereby the whistle fastened to the boiler was blown or knocked out, and from the opening thus made hot water and steam issued, scalding the deceased to death; that the engine was thrown from the track because the cowcatcher or pilot was defective, and the whistle blown or knocked out because it was insecurely fastened to the boiler; that these defects were owing to the negligence of the company's master mechanic, and of the foreman of the roundhouse at Marshall; that to the former was committed the exclusive management of the motive power of defendant's line, with full control over all engineers, and with unrestricted power to employ, direct, control, and (432) discharge them at pleasure; that all engineers were required to report for orders to those officers, and under their direction alone could engines go out upon the road; that deceased knew of the defective condition of the cowcatcher or pilot, and having complained thereof to both the master mechanic and foreman of the roundhouse, he was promised a number of times that the defect should be remedied, but such promises were not kept; that a new pilot was made, but by reason of
the negligence of those officers, it was not put on the engine; and the Court, after discussing Farwell v. R. R., 4 Met., 49, and stating that there are well defined exceptions to the general rule as to assumption of risk, says: "One, and perhaps the most important, of those exceptions arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant, when conducting the master's business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master. To that end the master is bound to observe all the care which prudence and the exigencies of the situation require, in providing the servant with machinery or other instrumentalities adequately safe for use by the latter. It is implied in the contract between the parties that the servant risks the dangers which ordinarily attend or are incident to the business in which he voluntarily engages for compensation, among which is the carelessness of those, at least in the same work or employment, with whose habits, conduct, and capacity he has, in the course of his duties, an opportunity to become acquainted, and against whose neglect or incompetency he may himself take such precautions as his inclination or judgment may suggest. But it is equally implied in the same contract that the master shall supply the physical means and agencies for the conduct of his business. It is also implied, and public policy requires, that in selecting such means he shall not be wanting in proper care. His negligence in that regard is not a hazard usually or necessarily attendant upon the business. Nor is it one which the servant, in legal contemplation, is presumed to risk, for the obvious reason that the servant, who is to use the instrumentalities provided by the (433) master, has, ordinarily, no connection with their purchase in the first instance or with their preservation or maintenance in suitable condition after they have been supplied by the master. . . . If the engineer, after discovering or recognizing the defective condition of the cowcatcher or pilot, had continued to use the engine, without giving notice thereof to the proper officers of the company, he would undoubtedly have been guilty of such contributory negligence as to bar a recovery, so far as such defect was found to have been the efficient cause of the death. He would be held, in that case, to have himself risked the dangers which might result from the use of the engine in such defective condition. But `there can be no doubt that, where a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby, within such period of time after the promise as it would be reasonable to allow for its performance, and, as we think, for an injury suffered within any period which would not preclude all reasonable expectation that the promise might be kept.'
Shearman and Redf. Negligence, sec. 96; Conroy v. Iron Works,62 Mo., 35; Patterson v. R. R., 76 Pa. St., 389; Le Clair v. R.R., 20 Minn. 9; Brabbitts v. R. R., 38 Mo., 289. `If the servant,' says Mr. Cooley, in his work on Torts, 559, `having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he makes his assurances good. Moreover, the assurances remove all ground for the argument that the servant, by continuing the employment, engages to assume the risks,'" and the Court adds, with reference to contributory negligence: "We may add that it was for the jury to say whether the defect in the cowcatcher or pilot was such that none but a reckless engineer, utterly careless of his safety, would have used the engine without it being removed. If, under all the circumstances, and in view of the promises to remedy the defect, the engineer was not wanting in due care in continuing to use the engine, then the company will not be excused for the omission to supply proper machinery, upon the ground of contributory (434) negligence. That the engineer knew of the alleged defect was not, under the circumstances, and as matter of law, absolutely conclusive of want of due care on his part."
In R. R. v. Ross, 112 U.S. 382, after stating the rule as to assumption of risk by the employee, the Court says: "But however this may be, it is indispensable to the employer's exemption from liability to his servant for the consequences of risks thus incurred, that he should himself be free from negligence. He must furnish the servant the means and appliances which the service requires for its efficient and safe performance, unless otherwise stipulated; and if he fails in that respect, and an injury results, he is as liable to the servant as he would be to a stranger. In other words, whilst claiming such exemption, he must not himself be guilty of contributory negligence."
Again, in R. R. v. Herbert, 116 U.S. 652: "Where the employee is not guilty of contributory negligence no irresponsibility should be admitted for an injury to him caused by the defective condition of the machinery and instruments with which he is required to work, except it could not have been known or guarded against by proper care and vigilance on the part of his employer."
Running through all the cases is the idea that the employee assumes the risk, when he continues to work in the presence of a known defect, only when he fails to object.
The latest case we have found is Brewery Co. v. Schmidt, 226 U.S. 162, in which the Court says: "The first point argued is that the defendant
was entitled to judgment on the special findings, because the fourth was that the cooker at the time was not in such a bad condition that a man of ordinary prudence would not have used the same. But the eleventh was that the defendant did not use ordinary care in furnishing the cooker and in having it repaired, and the sixth, that the defendant promised the plaintiff that the cooker should be repaired as an inducement for him to continue using it. So it is evidence that the fourth finding meant only that the plaintiff was not negligent in remaining at work. Whatever the difficulties may be with the (435) theory of the exception (1 Labatt Master Servant, ch. 22, sec. 423), it is the well settled law that for a certain time a master may remain liable for a failure to use reasonable care in furnishing a safe place in which to work, notwithstanding the servant's appreciation of the danger, if he induces the servant to keep on by a promise that the source of trouble shall be removed. Hough v. R. R., 110 U.S. 213.
The text-books very generally declare the same doctrine.
"There is no longer any doubt that where a master has expressly promised to repair a defect, the servant does not assume the risk of any injury caused thereby within such a period of time after the promise as would be reasonably allowed for its performance, or, indeed, within any period which would not preclude all reasonable expectation that the promise might be kept." 1 Shearman Redfield on Negligence, sec. 215, p. 372.
"It is also negligence for which the master may be held responsible, if, knowing of any peril, which is known to the servant also, he fails to remove it in accordance with the assurances made by him to the servant that he will do so. This case may also be planted on contract, but it is by no means essential to do so. If the servant, having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he makes his assurances good. Moreover, the assurances remove all ground for the argument that the servant, by continuing the employment, engages to assume its risks. So far as the particular peril is concerned, the implication of law is rebutted by the giving and accepting of the assurance, for nothing is plainer or more reasonable than that parties may and should, where practicable, come to an understanding between themselves regarding matters of this nature." Cooley on Torts, p. 1156.
"An obvious corollary from the principles explained in sec. 424, subds. a, b, supra, is that, as long as the period is running which is conceived to be covered by the promise, the defense of an assumption of
the given risk cannot be relied upon by the master. This doctrine is affirmed or taken for granted in all the decisions cited at the (436) place referred to." Labatt Master Servant, sec. 425.
In the note to Miller v. Monument Co., 18 A. and E. Ann. Cases, 961, there is a very full citation of authority upon the distinction between assumption of risk and contributory negligence, which it is necessary for us to consider further, as the case is presented, and in the note to Fosterv. R. R., 4 A. and E. Ann. Cases, 153, the editor, in dealing with the effect of a promise to repair on assumption of risk, cites decisions from thirty-five States, and others from the Federal courts, including the Houghcase, in support of the statement that, "It is a well settled general rule that the assumption of risk implied from a servant's knowledge that a tool, instrument, appliance, piece of machinery, or place of work is defective or dangerous, is suspended by the master's promise to repair, made in response to the servant's complaint, so that if the servant is induced by such promise to continue at work, he may recover for an injury which he sustains by reason of such defect within a reasonable time after the making of the promise, provided he exercises due care, unless the defect renders the appliance so imminently dangerous that a prudent person would decline to use it at all until it was repaired," and this last contingency is dealt with in the Hough case, supra, under contributory negligence.
Applying these principles to the evidence, we are of opinion that the charge of his Honor was favorable to the defendant, upon the issue of assumption of risk.
The plaintiff took charge of the engine on 27 July, 1910, and was injured while operating it on 4 August, 1910.
He testified, among other things, that he discovered the absence of the guard glass on his first trip out, and that upon his return on the next day he told the roundhouse foreman, to whom complaint ought to have been made, and whose duty it was to repair, that the guard glass was gone, and asked if he had one, and that the foreman replied, "they did not keep them in stock here; that they were made in Portsmouth, and he would have to send to Portsmouth to get one; to run her like she was. He said he would send to Portsmouth and get me one"; that he had the talk with the foreman between 3 and 5 o'clock, (437) and told him the shield or guard glass was gone, and he wanted one, and that the foreman said he had none in stock, and to run the engine as it was and he would send to Portsmouth and get him a shield or guard glass; that he knew there was some danger, but that he was told by the foreman to go ahead and operate without the shield, and if he had not done so, he would have lost his job.
The foreman denied that any complaint was made to him.
In this conflict of evidence it was for the jury to determine the fact, and upon this phase of the case his Honor, among other things, charged on the second issue as to assumption of risk as follows: "On the other hand, the employer has the right to assume that his employee will go about his work in a reasonably safe way and give due regard to the machinery and appliances which are in his hands and under his control, and if you should find from the evidence, by its greater weight (because the burden in this instance is on the defendant), that the plaintiff knew of the absence of the guard or shield to the water gauge, and failed to give notice to the defendant or to the agent whose duty it was to furnish the water gauge and appliance, and he continued to use it without giving that notice, it being furnished to him in a safe condition, then he assumed the risk incident to his work in the engine with the glass water gauge in that condition, although he might have handled his engine in every other respect with perfect care. If it was not received in good condition, and he failed to give notice, and if he did work with it in its present condition, without the shield or guard, he then assumed the risk. How was that? It is a question of evidence for you. Did he give the notice? Did he assume the risk by failing to give notice, keeping the knowledge of the absence of the guard glass within his own breast?
"But if you find that he gave notice to the foreman of the roundhouse, and if you should find that the use of the water gauge was not so obviously dangerous that a reasonably prudent man, careful of himself not to get hurt, while he was about his work, and went on and used it, he would not assume the risk; but if the danger was so apparent that a reasonably prudent man, careful of himself not to receive injury, would see that he was in imminent danger and would observe by the use of it that he was endangering himself by going on and working with it, and he continued to work with it, he would be assuming the risk and responsibility, and it would be your duty to answer that issue `Yes.' If it was so obviously dangerous that a reasonably prudent man would not use it, and he continued to use it instead of using the other, he would assume the risk."
It therefore appears that the defendant not only had the benefit of the rule that the employee assumes the risk if he works in the presence of a known danger without objection, but in addition, and as a distinct and separate proposition, that the plaintiff assumed the risk, although he objected, if he continued to work when a man of ordinary prudence
would see that there was greater danger of being hurt than otherwise, which would not be assumption of risk, but evidence of contributory negligence.
The third, fourth, and fifth prayers for instructions were properly refused, because directed to the second issue, instead of to the third, to which they were applicable.
We have thus far considered the case under the decisions of the Federal court. If we applied the provisions of the Fellow-servant Act of this State, as construed by our Court, there could be no issue as to assumption of risk. Coley v. R. R., 129 N.C. 407.
We have not been inadvertent to the other exceptions appearing in the record, seventy-two in number, but have examined them with care, and find no reversible error.
No error.