WALKER, J., concurring; BROWN, J., dissenting.
This is an action for personal injuries suffered by the plaintiff, while an engineer in defendant's employment, by the explosion of a water-glass on the defendant's locomotive, impairing the sight of the plaintiff's right eye. The case was first here 157 N.C. 146, (109) when a new trial was awarded. It was here again 162 N.C. 424, and upon writ of error it was then heard in the United States Supreme Court, 233 U.S. 492, and the writ being sustained, the case was remanded to the lower court, where, as we think, upon a review of the record, it has been tried strictly in conformity with that opinion of the United States Supreme Court.
The argument of the defendant seeks to put the plaintiff in this predicament: that if the likelihood of injury from an explosion of the glass was not apparent, then the defendant was not guilty of negligence; but, on the other hand, if such defect was apparent, then the plaintiff assumed the risk and is equally barred from recovering damages.
But that was not the ruling of the United States Supreme Court, as we understand it. That Court held: "When the employee knows of a
defect in the appliances used by him, and appreciates the resulting danger, and continues in the employment without objection or without obtaining from the employer an assurance of reparation, he assumes the risk, even though it may arise from the employer's breach of duty. But where there is promise of reparation by the employer, the continuing on duty by the employee does not amount to assumption of risk, unless the danger be so imminent that no ordinarily prudent man would rely on such promise."
The plaintiff testified that he notified the proper official that the guard-glass was gone, and asked for one, and the reply was that the road did not have any in stock, but had them in Portsmouth, and the company would send there and get one, and said that the plaintiff would "have to run the engine like she was.'
There was evidence from which the jury could find that while the absence of the guard-glass was a defect causing danger to the plaintiff, and which amounted to negligence on the part of the defendant, yet it was not such an imminent danger as would justify excusing the defendant, if the plaintiff remained on service after reporting the defect and receiving assurance that it would be repaired. The court properly told the jury that "Risks not naturally incident to the occupation may arise out of the failure of the employer, the defendant in this case, to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These latter risks the employee is not treated as assuming until he becomes aware of the defect or disrepair or of the risk arising from it, unless the defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them."
The court further charged: "When an employee does know of the defect and appreciates the risk that is attributable to it, then if (110) he continues in the employment without objection, or without obtaining from his employer or representative the assurance that the defect will be remedied, the employee assumes the risk, even though it arises out of the master's breach of duty. If, however, there be a promise of reparation, even during such time as may be reasonably required for its performance or until the particular time specified in such performance, the employee relying upon the promise does not assume the risk unless at least the danger be so imminent that no ordinarily prudent man would rely upon such promise."
The defendant excepted to the above instructions, but we think it is strictly in accordance with the decision of the United States Supreme Court in this case, and that upon the evidence the jury were authorized to find, as they did in response to the second issue, that the plaintiff did not assume the risk of injury.
There are numerous other exceptions, but this case has been so fully considered in every aspect of the law and the facts have been so fully set forth on the two former appeals in this Court, and also upon consideration of the writ of error in the United States Supreme Court, that it would be work of supererogation to go over the same ground a fourth time.
The very careful and learned judge who tried this case below seems to have fully comprehended and to have closely and carefully followed the decision of the United States Supreme Court upon the points on which that Court gave a new trial, and we find no error in his rulings.
The only other exception that we need refer to is the refusal by the court below of the motion for a new trial for newly discovered evidence. Such refusal was discretionary with the court, and is not reviewable here. It is true, the judge stated that the newly discovered evidence, if true, was merely cumulative. But that does not justify us in reversing his judgment denying the motion for a new trial.
The defendant's cause has been very fully and ably presented, but we find nothing that would justify us in setting aside the verdict and judgment. The court and jury had the benefit of all the light that could be shed upon this controversy, from every angle, by this Court and the United States Supreme Court, and seem to have faithfully followed the views of the Court, of highest resort where it differed from the views of this Court, and in other respects to have followed the well settled decisions of this tribunal.
No error.
I am unable to agree with the conclusion reached by the Court in this case. The decision of the United States Supreme Court leaves it open to us to say whether the plaintiff, as a matter of law, assumed the risk of injury from the defective water-glass. That question was not passed (111) upon, and if it had been, upon the facts as then presented that would not prevent a consideration of the question upon this appeal, when the facts showing assumption of risk are much stronger. The United States Supreme Court reversed our judgment and remanded the cause for further proceedings not inconsistent with their opinion.
Mr. Justice Pitney states the law of this case as follows: "When the employee does know of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment without objection, or without obtaining from the employer or his representative an assurance that the defect will be remedied, the employee assumes the risk, even though it arises out of the master's breach of duty. If,
however, there be a promise of reparation, then during such time as may be reasonably required for its performance, or until the particular time specified for its performance, the employee, relying upon the promise, does not assume the risk unless at least the danger be so imminent that no ordinarily prudent man under the circumstances would rely upon such promise." Seaboard Air Line Railway v. Horton, 233 U.S. 492.
Applying this rule to the undisputed evidence, I am of opinion that the plaintiff assumed the risk of injury and is not entitled to recover.
Plaintiff was operating an engine equipped with a Buckner water-glass, which is so constructed that a thick guard-glass is placed over the front of the water-glass to protect the engineer from injury in the event the inner glass should explode.
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WALKER, J., concurring; BROWN, J., dissenting.
This is an action for personal injuries suffered by the plaintiff, while an engineer in defendant's employment, by the explosion of a water-glass on the defendant's locomotive, impairing the sight of the plaintiff's right eye. The case was first here 157 N.C. 146, (109) when a new trial was awarded. It was here again 162 N.C. 424, and upon writ of error it was then heard in the United States Supreme Court, 233 U.S. 492, and the writ being sustained, the case was remanded to the lower court, where, as we think, upon a review of the record, it has been tried strictly in conformity with that opinion of the United States Supreme Court.
The argument of the defendant seeks to put the plaintiff in this predicament: that if the likelihood of injury from an explosion of the glass was not apparent, then the defendant was not guilty of negligence; but, on the other hand, if such defect was apparent, then the plaintiff assumed the risk and is equally barred from recovering damages.
But that was not the ruling of the United States Supreme Court, as we understand it. That Court held: "When the employee knows of a
defect in the appliances used by him, and appreciates the resulting danger, and continues in the employment without objection or without obtaining from the employer an assurance of reparation, he assumes the risk, even though it may arise from the employer's breach of duty. But where there is promise of reparation by the employer, the continuing on duty by the employee does not amount to assumption of risk, unless the danger be so imminent that no ordinarily prudent man would rely on such promise."
The plaintiff testified that he notified the proper official that the guard-glass was gone, and asked for one, and the reply was that the road did not have any in stock, but had them in Portsmouth, and the company would send there and get one, and said that the plaintiff would "have to run the engine like she was.'
There was evidence from which the jury could find that while the absence of the guard-glass was a defect causing danger to the plaintiff, and which amounted to negligence on the part of the defendant, yet it was not such an imminent danger as would justify excusing the defendant, if the plaintiff remained on service after reporting the defect and receiving assurance that it would be repaired. The court properly told the jury that "Risks not naturally incident to the occupation may arise out of the failure of the employer, the defendant in this case, to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These latter risks the employee is not treated as assuming until he becomes aware of the defect or disrepair or of the risk arising from it, unless the defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them."
The court further charged: "When an employee does know of the defect and appreciates the risk that is attributable to it, then if (110) he continues in the employment without objection, or without obtaining from his employer or representative the assurance that the defect will be remedied, the employee assumes the risk, even though it arises out of the master's breach of duty. If, however, there be a promise of reparation, even during such time as may be reasonably required for its performance or until the particular time specified in such performance, the employee relying upon the promise does not assume the risk unless at least the danger be so imminent that no ordinarily prudent man would rely upon such promise."
The defendant excepted to the above instructions, but we think it is strictly in accordance with the decision of the United States Supreme Court in this case, and that upon the evidence the jury were authorized to find, as they did in response to the second issue, that the plaintiff did not assume the risk of injury.
There are numerous other exceptions, but this case has been so fully considered in every aspect of the law and the facts have been so fully set forth on the two former appeals in this Court, and also upon consideration of the writ of error in the United States Supreme Court, that it would be work of supererogation to go over the same ground a fourth time.
The very careful and learned judge who tried this case below seems to have fully comprehended and to have closely and carefully followed the decision of the United States Supreme Court upon the points on which that Court gave a new trial, and we find no error in his rulings.
The only other exception that we need refer to is the refusal by the court below of the motion for a new trial for newly discovered evidence. Such refusal was discretionary with the court, and is not reviewable here. It is true, the judge stated that the newly discovered evidence, if true, was merely cumulative. But that does not justify us in reversing his judgment denying the motion for a new trial.
The defendant's cause has been very fully and ably presented, but we find nothing that would justify us in setting aside the verdict and judgment. The court and jury had the benefit of all the light that could be shed upon this controversy, from every angle, by this Court and the United States Supreme Court, and seem to have faithfully followed the views of the Court, of highest resort where it differed from the views of this Court, and in other respects to have followed the well settled decisions of this tribunal.
No error.
I am unable to agree with the conclusion reached by the Court in this case. The decision of the United States Supreme Court leaves it open to us to say whether the plaintiff, as a matter of law, assumed the risk of injury from the defective water-glass. That question was not passed (111) upon, and if it had been, upon the facts as then presented that would not prevent a consideration of the question upon this appeal, when the facts showing assumption of risk are much stronger. The United States Supreme Court reversed our judgment and remanded the cause for further proceedings not inconsistent with their opinion.
Mr. Justice Pitney states the law of this case as follows: "When the employee does know of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment without objection, or without obtaining from the employer or his representative an assurance that the defect will be remedied, the employee assumes the risk, even though it arises out of the master's breach of duty. If,
however, there be a promise of reparation, then during such time as may be reasonably required for its performance, or until the particular time specified for its performance, the employee, relying upon the promise, does not assume the risk unless at least the danger be so imminent that no ordinarily prudent man under the circumstances would rely upon such promise." Seaboard Air Line Railway v. Horton, 233 U.S. 492.
Applying this rule to the undisputed evidence, I am of opinion that the plaintiff assumed the risk of injury and is not entitled to recover.
Plaintiff was operating an engine equipped with a Buckner water-glass, which is so constructed that a thick guard-glass is placed over the front of the water-glass to protect the engineer from injury in the event the inner glass should explode. The engine was also equipped with another method of determining the amount of water in the boiler, that is, by means of gauge cocks placed on the head of the boiler. Plaintiff made the first trip from Raleigh to Aberdeen on 27 July, returning in the evening of 28 July, and he was returning from the third trip to Aberdeen when he sustained the injury to his eye by the explosion of the water-glass, on 4 August. It required two days to make the round trip.
On the morning plaintiff was called to take this engine for the first trip to Aberdeen, he noticed before leaving Raleigh that there was no shield or guard on the water-glass. Without making complaint of the condition of the glass, plaintiff made the trip to Aberdeen and return. Upon his arrival in Raleigh at the end of his round trip, he made a written report of the condition of his engine upon forms provided for that purpose, and in accordance with the defendant's requirements he placed the report on file in the roundhouse or put it in a box there for that purpose. This, according to the plaintiff's evidence, was the way provided by the company for procuring repairs. Plaintiff, and a (112) number of defendant's witnesses, said that these work reports were required to be in writing, that they were filed and distributed among the workmen for the purpose of making the required repairs. It appears in evidence that plaintiff made a written report on this engine at the return of each round trip, and noted every defect in his engine except the absence of the guard-glass.
On 4 August, while engaged in shifting cars at Apex, N.C. the water-glass exploded and injured his eye. Immediately after the explosion plaintiff 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, 1 or 2 inches wide and 8 or 9 inches long, with a
thickness of about one-half of an inch. Plaintiff testified that the piece of glass in front of the tube is to prevent the flying glass from hitting the engineer in case the inner tube should burst; that the insertion of this glass will prevent flying glass from striking the engineer or other persons in the cab if the tube explodes. In answer to questions on cross-examination, plaintiff testified: "Yes, it is dangerous to run it (the engine) without a guard-glass. You see, the tube might explode. The guard-glass is put there to prevent the explosion of the inner tube injuring the engineer. The purpose of the guard-glass is to make it safe for the engineer to operate his engine with the Buckner water gauge." Plaintiff further testified that at the time of the accident the steam pressure in the unprotected glass tube in the Buckner gauge was 200 pounds, and that it was liable to explode at any time. He said: "I knew that with that guard-glass out that the tube was liable to explode with the 200 pounds pressure on it. I knew that it was liable to explode, but I could not tell when." At the time of his injury plaintiff was sitting on the left-hand side of the cab, facing the glass, which was within a few feet of his face. He said: "I was going to cross over on the fireman's side to see the conductor, whether he was ready to couple up, and that put me directly facing the glass, with my eye directly opposite that slit," and while in this position the explosion occurred. Plaintiff gave an estimate of the dimensions of the inner tube, as follows: "12 or 14 inches long and about three-eights of an inch thick, and one-half inch in diameter."
Plaintiff described the method of gauging the water in the boiler by the three gauge cocks, and said that Benton, his fireman, brought the engine in from Apex to Raleigh, using the gauge cocks to tell how much water he had in the boiler. This was immediately after the accident. He said that he did not cut out the water gauge and use the gauge cocks on any of the three trips he made with this engine; that he did not attempt to run the engine without the watergauge glass. On a former (113) occasion a water-glass exploded and injured plaintiff's eye, while he was employed on one of defendant's engines.
Ernest Horton, plaintiff's witness, testified: "The water-glass and gauge cocks are right upon the head of the boiler, right at hand, and he has to use them in running his engine — not constantly, though. They are there all the time for his use. By turning those three gauge cocks you can gauge somewhere near about the water in the boiler, but you cannot tell the perfect level. The guard-glass on the Buckner water gauge is to prevent the glass from spattering in your face when the inner tube bursts that comes out with the water and steam. This glass
is put in there to prevent the glass from sputtering out in case that glass bursts."
Dave Campbell, an engineer of ten years experience, testified that an engineer can operate an engine in safety by the use of the gauge cocks; that if his water-glass guard is missing, it would be his duty to cut out the glass and use the gauge cocks. He said: "It is very dangerous to use the Buckner water gauge without the guard-glass, because it has a tendency to throw the glass in a certain direction if it explodes. That glass tube on the Buckner water gauge is liable to explode. I have shut off the water gauge and run on the gauge cocks many a time." Lewis Archer testified for the defendant that he has been in the railroad business since 1882; that he is familiar with the construction and operation of the Buckner water-glass. "It is a safe water-glass with the guard-glass in place. With the guard-glass out of place, it is one of the most dangerous things you could have on an engine, on account of that slot; when the glass breaks, it throws the glass out of that one place. You can operate an engine without a water gauge with safety, by using the gauge cocks. I consider that the safest plan of operation."
In my opinion, the only conclusion to be drawn from this evidence is that no man of ordinary prudence would have continued to work in the face of so great and so imminent a danger. The defendant moved for judgment of nonsuit at the conclusion of the evidence and requested the court to instruct the jury that if they believed the evidence they would answer the issue of assumption of risk "Yes." This has the effect of a request to withdraw the case from the jury.
It is said to be well settled by the Supreme Court of the United States that it is the duty of the trial court to withdraw a case from the jury where the evidence is undisputed or is so conclusive that the court, in the exercise of its discretion, must set aside a verdict returned in opposition to it. Randall v. R. R., 109 U.S. 478; R. R. v. Converse, 139 U.S. 469. This rule has been applied by the Court in an (114) action involving the defense of assumption of risk, where it appeared from plaintiff's evidence that he assumed the risk.Butler v. Frazee, 211 U.S. 459.
In the case of District of Columbia v. McElligott, 117 U.S. 622, the United States Supreme Court has applied the doctrine which, in my judgment, sustained the defendant's right to an instruction that plaintiff assumed the risk of injury. In that case the plaintiff, who was in the employ of the District, was injured while at work on a bank of gravel. The evidence tended to show that he discovered that there was danger of the bank caving in, and went to the supervisor for more men to do the work, and for one man to watch the bank, and that he received the information that such assistance would be sent. Before the
assistance arrived the bank caved in, causing his injury. The Court said: "Assuming that the District might be responsible under some circumstances for injuries resulting from the negligence of its supervisor, it certainly would not be liable if the danger which the plaintiff apprehended from the beginning was so manifest as to prevent a reasonably prudent man from risking it upon a promise or assurance by the proper authority that the cause from which the peril arose would be removed. . . . If he failed to exercise such care, if he exposed himself to dangers that were so threatening or obvious as likely to cause injury at any moment, he would, notwithstanding any promises or assurances of the District supervisor of the character alleged, be guilty of such contributory negligence as would defeat his claim for injuries so received." Roccia v. Coal Co., 121 Fed., 451; Attleton v. Mfg. Co., 5 Ga. App. 779; R. R. v. Watson, 114 Ind. In Alteriac v. Coal Co., 161 Ala. 435, it is held: "Where a miner of many years experience saw a pot- or bell-shaped rock in the roof of a mine, and knew that it was more or less disconnected and liable to fall without warning at any moment, and after telling his superior of it, and that he would not work without timbers, but who returned to the work under the pot- or bellshaped rock on being told to do so, and on the promise that the timber would be sent at once, assumed the risk incident to his return and work thereunder." In Erdman v. Steel Co., 59 Wis. 6, the Wisconsin Supreme Court holds: "An experienced servant cannot recover if he continues, even for an hour or two, to encounter the obvious and immediate danger of using a cracked saw to cut steel plates." In the case of McAndrews v. R. R., 39 P. 85, in which the plaintiff continued to use a defective hand-car which was likely to jump the track at any moment, the Supreme Court of Montana says: "If the machinery is not only defective, but so obviously dangerous that no ordinarily prudent man would assume the risk of using it, and the employee does use it, knowing its absolutely and obviously dangerous condition, and the dangers of using it, the master is not liable, not withstanding the promise to remedy the defect."
These cases illustrate the rule that after promise to repair the (115) workman assumes the risk if the danger is such that a prudent man would not continue to work in the face of it. That the danger in this case is of that character appears to me to require no argument.
I am of opinion, also, that defendant's request for instruction that plaintiff was guilty of contributory negligence should have been given. This is a question of law when the facts are undisputed. Strickland v. R.R., 150 N.C. 4; Aerkfetz v. Humphries, 145 U.S. 418. Plaintiff used the defective water-glass when he had at hand a safe way to operate his engine, that is, with the gauge cocks. This was contributory
negligence. Covington v. Furniture Co., 138 N.C. 74; Whitson v. Wrenn,134 N.C. 86.
There are other exceptions in the record which are discussed in defendant's brief, raising important questions, but which I will not discuss. What I have written presents my views upon the main questions.