Johnson v. Richmond & Danville Railroad

81 N.C. 453

• Court: Supreme Court of North Carolina
• Decided: June 5, 1879
• Status: Published

Opinion

Smith, C. J.

The plaintiff was employed as a brakeman on the defendant’s railroad, and upon a signal from the engineer was in the act of applying the brake, when the upright rod gave way, precipitating him to the ground and inflicting the injuries for the redress of which the suit is brought.

The defect in the rod was an ancient flaw or crack extending obliquely about two-thirds into its body, and the rod at this point was insufficient to bear the strain. Issues were submitted to the jury and their findings establish the following facts : The defendant exercised proper care in the construction of the rod. There were no inspectors or officers at the place of starting, in the defendant’s employ, to examine and report the condition of the machinery and cars, and ascertain if they were sound and in good order. The defect in the rod rendered it unfit for use and this was discoverable upon an inspection made with ordinary, care, but it was not known to either party to exist. The plaintiff’ had no reasonable opportunity previous to the accident to make an examination and inform himself of the defect, and he could not in the exercise of ordinary prudence have avoided the injury.

The plaintiff’s damages are assessed at $800. From the judgment rendered for the plaintiff the defendant appeals.

1. The law does not impose upon carriers of passengers the same high responsibility for an injury to one of their own employees. He and his associate servants assume the hazards incident to their employment, and as an insurance against such receive a higher compensation for their .labor. If an injury to one results from the negligent conduct of another, performing different duties in running the same train, the principal is not liable therefor, if he employs and retains persons competent and possessed of the necessary skill for the service to which they are respectively assigned. If the servant knows of defects in the machinery and remains in the service, he cannot recover for injuries caused by such defects unless he has informed his superior and the latter fails to remedy them.

It is the. duty of each to examine the part of the machinery in his special charge and ascertain and report its condition, for the protection of the company and for the safety of himself and fellow-servants. But in every case he must not by his own negligent conduct contribute to the injury, and if, by reasonable care and prudence it could have been averted, he has no remedy against his employer. These are the general legal relations, subsisting between the servants themselves in a common undertaking which requires the co-operation of many for its successful prosecution. They are recognized by elementary writers and -in our own numerous adjudications. Manly v. R. R. Co., 74 N. C., 655; Crutchfield v. R. R. Co., 76 N. C., 320, and 78 N. C., 300; Hardy v. R. R. Co., 74 N. C., 734, and 76 N. C., 5.

2. It is the general duty of carriers of persons, its own servants as well as paying passengers, to provide suitable carriages, strong and sufficient for safe transportation and to maintain them in repair, and in order thereto to have frequent and thorough examinations made by competent men; and if, from want of such examinations, defects are not discovered, or if discovered are not remedied, and an injury is caused thereby, the company is answerable for the consequences unless the injured party has himself failed to exercise due caution by which the accident could have been prevented. Whart. Neg., § 628, etseq. and the cases cited.

In the present case all the conditions exist upon which the defendant’s responsibility depends, and none by which it can be removed. The plaintiff had no knowledge nor information, nor opportunity for examination of the defec- five rod, and the hazards of its continued use, and was performing his duty when it parted under the strain, and he fell.

Had the proper examination been made by the defendant and the rod repaired and strengthened, the accident would not have occurred, and hence it must be ascribed to the defendant’s own dereliction of duty. The fault lies with the company, and it must bear the consequences.

3. The exceptions to the instructions of the court are substantially disposed of in what we have already said, since they are founded upon the same misconceptions of the law which induced the defendant’s motion for judgment against the plaintiff, notwithstanding the findings of the jury.

No error. Affirmed.