Mathis v. Atlantic Coast Line Railroad

Supreme Court of North Carolina

Mathis v. Atlantic Coast Line Railroad

56 S.E. 864, 144 N.C. 162, 1907 N.C. LEXIS 123

DecidedMarch 20, 1907

StatusPublished

This text of 56 S.E. 864 (Mathis v. Atlantic Coast Line Railroad) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mathis v. Atlantic Coast Line Railroad, 56 S.E. 864, 144 N.C. 162, 1907 N.C. LEXIS 123 (N.C. 1907).

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Opinion

CoNNOR, J.,

after stating tbe case: We concur in tbe opinion of bis Honor that, upon bis own testimony*, tbe plaintiff is not entitled to recover. The evidence does not disclose the use of a defective “appliance or way” by reason of which tbe injury was sustained, and does not, therefore, come within the statute, Revisal, see. 2646. Tbe plaintiff, being told that tbe chain controlling the action of the spout was rotten, went, by direction of tbe roadmaster, not to use or operate tbe spout, but to repair tbe cbain, or put a new one *164 in; knowing, therefore, that it was rotten, be negligently pulled it and thereby caused it to do the very thing he was directed to prevent. The language of the Court in Dartmouth Spinning Co. v. Acord, 84 Ga., 16, cited in defendant’s brief, is in point: “Precisely because it is unsafe for use, repairs are often necessary. The physician might as well insist on having a well patient to be treated and cared for as the machinist to have sound and safe machinery to be repaired. The plaintiff was called to this machinery as infirm, not as whole; * * * so far as appears, no one knew more of the state and condition of the machinery than he did; and the object of calling him in the room was that he might ascertain the cause of the trouble and apply the remedy.” Pressly v. Yarn Mills, 138 N. C., 418. We do not wish to be understood as saying that the mere fact that an employee who is engaged in the work of repairing machinery is barred of recovery, if injured by defective ways or appliances furnished for that purpose. 'A number of cases in our reports show the contrary. If the platform upon which plaintiff stood for the purpose of discharging his duty had been rotten or otherwise insecure, or the wire furnished him to repair the spout unfit, and by reason thereof he was injured, there would be no doubt of his right to recover. The plaintiff was sent to repair the spout by replacing the rotten chain with a sound one. He pulled the rotten chain and it broke. We cannot see in this evidence any breach of duty on the part of the defendant. The judgment of nonsuit was correct, and must be

Affirmed.

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CoNNOR, J.,

after stating tbe case: We concur in tbe opinion of bis Honor that, upon bis own testimony*, tbe plaintiff is not entitled to recover. The evidence does not disclose the use of a defective “appliance or way” by reason of which tbe injury was sustained, and does not, therefore, come within the statute, Revisal, see. 2646. Tbe plaintiff, being told that tbe chain controlling the action of the spout was rotten, went, by direction of tbe roadmaster, not to use or operate tbe spout, but to repair tbe cbain, or put a new one *164 in; knowing, therefore, that it was rotten, be negligently pulled it and thereby caused it to do the very thing he was directed to prevent. The language of the Court in Dartmouth Spinning Co. v. Acord, 84 Ga., 16, cited in defendant’s brief, is in point: “Precisely because it is unsafe for use, repairs are often necessary. The physician might as well insist on having a well patient to be treated and cared for as the machinist to have sound and safe machinery to be repaired. The plaintiff was called to this machinery as infirm, not as whole; * * * so far as appears, no one knew more of the state and condition of the machinery than he did; and the object of calling him in the room was that he might ascertain the cause of the trouble and apply the remedy.” Pressly v. Yarn Mills, 138 N. C., 418. We do not wish to be understood as saying that the mere fact that an employee who is engaged in the work of repairing machinery is barred of recovery, if injured by defective ways or appliances furnished for that purpose. 'A number of cases in our reports show the contrary. If the platform upon which plaintiff stood for the purpose of discharging his duty had been rotten or otherwise insecure, or the wire furnished him to repair the spout unfit, and by reason thereof he was injured, there would be no doubt of his right to recover. The plaintiff was sent to repair the spout by replacing the rotten chain with a sound one. He pulled the rotten chain and it broke. We cannot see in this evidence any breach of duty on the part of the defendant. The judgment of nonsuit was correct, and must be

Affirmed.

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56 S.E. 864, 144 N.C. 162, 1907 N.C. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mathis-v-atlantic-coast-line-railroad-nc-1907.

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