1st An accident is "an event from an unknown cause," or `an unusual and unexpected event from a known cause," "chance, casualty." As if a railroad bed be in good order and the engine and cars be in good order, and the engineer and other attendants be skilful and careful; and yet a rail breaks, the train is crushed and the employees and passengers are killed; that is an unusual and unexpected event from a known cause, an accident.
But if the track be out of order and the engine worn and unmanageable and on account thereof there be the like result as above stated on the good road, that is not an unusual and unexpected event, but a usual and expected event from such a cause. It is not accident but it is negligence.
Suppose then it were true as contended for by the defendant, that the plaintiff either from the general nature of his employment on the defendant's road or by express contract, assumed the risk of all accidents, yet it would not follow that he would not be entitled to recover. He would still be entitled to recover if his injury resulted not from accident but from the negligence of the defendant.
2nd. But suppose the plaintiff as an employee on the road knew that the road and the engine were out of order, could he recover?
It would seem that if an engineer whose peculiar duty it is to know the condition of the engine and to give notice of any fault in order that it may be repaired, runs the engine out of order without giving such notice and is injured, he is guilty of at least contributory negligence and could not recover. *Page 323
So, if a brakeman, as the plaintiff was, knows that the brakes are out of order and does not communicate it in order that they may be repaired, and injury results to him therefrom, he would be guilty of at least contributory negligence and could not recover. This is so for two reasons;First. It is the duty of the employees to inform the employer when anything is out of order in their peculiar departments that it may be put right.Second, Because if it be not put right, then it is their privilege to leave the service.
3rd. But here the fault was not in the plaintiff's department of brakes so that he cannot be said to be directly guilty of contributory negligence in not disclosing it or in continuing in the service after he knew it. Yet, if the injury was from the negligence of his fellow servant, can he recover of the defendant?
The decisions both English and American go very far towards the conclusion that one servant cannot recover of the employer for any injury which results from the negligence of a fellow servant in a business common to both. There may be exceptions, but grant that to be so for the sake of the argument; yet it is not so where the employer contributes to the negligence of the fellow servant or to the injury; as if he employ an unfit servant or as in the case of a bad engine, knows that it is bad and fails to repair it. So in this case, if the defendant answers that the plaintiff cannot recover because the injury resulted from the negligence of his fellow servant, the engineer, the plaintiff may reply that the defendant contributed to the negligence of the engineer and to the injury by having a bad engine.
What we have said will be found to be well supported by Wharton's Law of Negligence in his chapter on "Master's Liability to Servants;" and by his references, some of which I have consulted. And also by Redfield on Railways, § 170, et seq. *Page 324
See also Hardy v. N.C. C. R. R. Co 74 N.C. 734. And the same case upon petition to rehear to be reported in 76 N.C. (See ante 5.)
4th. It being the principal matter in dispute, whether the engine was a good or a bad one, the defendant introduced the engineer, Hicks, who swore that it was a good one. And thereupon the plaintiff introduced Dr. Bahnsen, who swore that Hicks told him that the engine was a bad one.
His Honor in his charge to the jury said that it was not denied but that Dr. Bahnsen was a gentleman of unquestionably high character in his profession and that he appeared to be a gentleman of culture. And the defendant insists that thereby His Honor expressed an opinion upon the facts. To this the plaintiff replies that His Honor did not say that of Dr. Bahnsen, in reference to his contradiction of Hicks, but in reference to his testimony as an expert, as to the injury which the plaintiff had received; and that at any rate if he erred in praising Dr. Bahnsen and not praising Hicks the error was cured, by his telling the jury that the credibility of the witnesses was a question for them.
Suppose we put His Honor's charge in this form: `Gentlemen of the jury; Hicks is an engineer by profession and he swears that the engine was a good one. Dr. Bahnsen is a physician by profession and he swears that Hicks told him that the engine was a bad one. Dr. Bahnsen is a man of high character in his profession and appears to be a man of culture; Hicks is not, in his profession, but you are the judges of their credibility." Would there be any doubt as to which witness His Honor thought the jury ought to believe? Yet putting it in this form, only makes the contrast which was drawn between the two witnesses a little more striking. Nor does it matter if His Honor was, (if he was) speaking of another part of Dr. Bahnsen's testimony when he put his *Page 325 estimate upon him as a physician of high character and a gentleman of culture. That was the mark put upon the man and it attached to every part of his testimony. A Judge ought not to state to the jury his estimate of a witness or how he appears to him.
In a late case before us two witnesses had sworn contrary and the Judge told the jury that both were gentlemen and it was only a matter of memory. And we had to give a new trial.
Error.
PER CURIAM. Venire de novo.