WALKER, J., dissenting. The plaintiff was injured in consequence of using a defective hand car, whose defects he had repeatedly reported to his superior, who promised to furnish another hand car, but had failed to do so. The nonsuit was properly refused, both because of the fellow-servant law (Revisal, sec. 2646), which denies the defense of assumption of risk when an employee is injured "by any defect in the machinery, ways and appliances of the company" (Coley v.R. R., 128 N.C. 534), and even independently of that statute, because the plaintiff had reported the defective hand car to his superior and had been promised another one. Labatt Master and Servant, p. 86 (b), and sec. 423, p. 1193.
The defendant relied on the defense of contributory negligence, but that issue was found in favor of the plaintiff. The acts complained of were that the plaintiff, in charge of the hand car, was standing up, helping his men work the lever up and down, running the car, and, looking back, saw the train, 6 miles off, and about this time the hand car flew the track, solely from the defect, previously reported, in its running gear. The rules of the company required the hand car to be taken off twenty minutes before the train passed. It is not clear whether the accident occurred twenty minutes before the train passed or not, but there was no causal connection between the passage of the *Page 181 train and the injury, and the jury so found. It may be that the court might well have instructed the jury, if they believed the evidence, to find the issue of contributory negligence in the negative. Certainly the defendant has no cause of complaint, for the court gave the instructions asked by the defendant, with the proper modification, (250) that if the conduct of the plaintiff should be found as stated in the defendant's prayers, and was the proximate cause of the injury, to answer the issue of contributory negligence "Yes"; otherwise, "No." Negligence, to bar a recovery, must be shown to be the proximate cause of the injury. Baker v. R. R., 118 N.C. 1021; Ramsbottom v. R. R., 138 N.C. 38, cited and approved; Allen v. R. R., ante, 214.
The charge as to quantum of damages follows that approved in Wallace v.R. R., 104 N.C. 452, and recently in Ruffin v. R. R., 142 N.C. 129.
The amount of damages was a matter of fact of which the jury were the judges. If their finding was excessive, his Honor, who heard the evidence, had the corrective power to set it aside. His refusal to do so is not reviewable by us. This is well settled by numerous decisions of this Court.Norton v. R. R., 122 N.C. 937, and cases there cited. There are States under the wording of whose Constitutions the appellate court can review the question of excessive damages, and it may not be improper to say that in those courts verdicts for damages for wrongful death and for personal injuries sustained by employees and others by reason of negligence in operating railroads, much greater in amount than those ordinarily returned by juries in cases coming up to this Court, have been sustained as not excessive.
No error.