The defendant excepted to the ruling of the court admitting testimony regarding the customary way by which brakemen on lumber cars, loaded as the one upon which intestate was (654) injured, descended from the lumber piled on the car, to the floor of the car for the purpose of making coupling. Freeland says: "I know custom of couplers getting down to the front of a moving car, loaded with lumber, by catching hold of the crosspiece for the purpose of making coupling." In reply to a question he says: "It would have been necessary for him to get where he could see whether the coupler was properly adjusted. If these knuckles had been adjusted right he could have gotten down to the floor of the lumber car and adjusted the coupling as it approached the other car. . . . In going down to the front end of the car he would have been compelled to hold to the crosspiece on the end of the car in getting down, and after he got down he would have been compelled to hold to the ends of the lumber while making preparations to adjust the coupling. I don't know of my own knowledge what the custom of defendant's employees is anywhere except in Charlotte and Savannah." He then gives the extent of his knowledge and observation. Dellinger says that he knew the customary use to which crosspieces of standards at the end of lumber cars, loaded as this one, was put by the employees of the defendant company. That the crosspiece is put there to hold the lumber together, but they use it for holding to it in going up and down over the end of the car. He would take hold of the crosspiece and then take hold of the ends of the lumber. The only *Page 504 way for a man to get off a lumber car would be to go over the end of it. He could not have gotten off on the side — he would have killed himself. By going to the front end of the car to make the coupling he can get his work done quicker." Bradley testified that he knew the custom, etc. "The crosspieces are put there to stay the load as far as the shipper is concerned and to keep the standards from spreading at the top, but it is an habitual thing, with switchmen and couplers, in going over (655) lumber cars, when they go to get down the ends of them to catch hold of the crosspiece to get down by. They do it frequently when the standards are close enough to the end for them to do so. . . . When they are anywhere like 15 or 20 inches from the end they make a good handhold to get down by, and practically the only handhold that they have got. . . . I would just climb down over the pile of lumber and stand on the floor of the car in a 10-inch space, reach out and put my foot on the bumper and adjust the knuckle and then turn around and climb back. Have done it many a time and seen it done many a time." Troutman, yard conductor for Southern, testified that he saw the car on which intestate was killed; he described the manner in which the car was loaded, standards and crosspieces. They are put on by shipper and removed by him when car is unloaded. He described manner of men in getting on top of lumber, etc. We have omitted those parts of the testimony upon which defendant relies to sustain its defense. We will consider them in that connection. The materiality of the testimony in regard to the custom of employees engaged in making couplings of cars loaded with lumber, as the one upon which intestate was killed, arises out of the fact that the crosspiece to which intestate caught hold was not primarily intended for that purpose. The liability of defendant for negligence in regard to securing them is dependent upon the secondary use to which it is claimed they were put by the employees. As we shall see later on, this question becomes both material and pivotal in one aspect of the case. Defendant's counsel in the conclusion of their able and exhaustive brief say that the exceptions, 1st to 8th inclusive, are to be considered in connection with the 9th exception to the refusal of the judge to sustain the demurrer to the evidence. We think, for the purpose for which it was received, the testimony objected to was competent. If the crosspieces are to be treated as coming within the statutory definition of "ways or appliances," much of this (656) testimony would be immaterial and irrelevant. That they do so is vigorously contested by the defendant. The probative force of this testimony as sustaining the plaintiff's contention is for the jury, and was so submitted by his Honor. Taking, for the purpose of the demurrer, the fact of the custom to be established, we have the following *Page 505 facts bearing upon the defendant's alleged negligence: A train of nine cars (plaintiff's intestate being upon the rear one) was being backed over the defendant's road in the city of Charlotte for the purpose of coupling with others standing upon the track. The rear flat car was loaded with lumber, sawed plank, piled on the car to the height of 4 1/2 or 5 feet. The ends of the planks came within 8 to 10 inches of the end of the car. Standards or pieces of wood of the proper size were placed in sockets on the sides of the car to steady the lumber. A piece of wood of sufficient size was nailed to the standards near the end of the car over the top of the pile of lumber, secured by three eight-penny nails at each end. The car was loaded and the standards and crosspieces furnished and placed on the car by the shipper. The defendant recommended to its patrons, loading cars with lumber for shipment over its lines, compliance with the rules of the Master Car Builders' Association, revised 1901, that when the specified fastenings are by means of boards, there must be two boards for every pair of standards and be fastened at each end by not less than three ten-penny nails. These crosspieces were placed for the purpose stated by the plaintiff's witnesses, and used by employees in the manner herein stated by said witnesses. On the night of the injury, the conductor and the intestate were on the lumber car while being backed to the other cars for the purpose of coupling. As the said train was being backed, as aforesaid, towards the freight depot, the conductor told intestate that there were two cars somewhere near the bridge, and that they were to couple the said cars onto said train or lumber car and shift back uptown. The cars were some 400 or 500 feet away at that time. It was the duty of the plaintiff's intestate to obey said orders. (657) While attempting to climb down over the front end of the moving lumber car to the floor, the intestate took hold of, and held to, the said crosspieces, which pulled off, or were jerked loose by the intestate, who thereupon fell upon the track, when the car ran over and killed him. The car was used by the defendant in its interstate commerce for the transportation of lumber.
The defendant contends that upon these facts the court should hold as a matter of law: (1) That crosspieces were not an appliance. (2) That the intestate was using a crosspiece for a purpose for which it was not intended. (3) That it was not defective.
For support of these propositions counsel cite a number of cases. In the view which we take of the case, and in which it was submitted to the jury by the judge below, it is not necessary to decide whether the crosspiece is within the meaning of the statute (Revisal, sec. 2646) "a way or appliance," with the resulting consequences for a defect therein. It may be conceded that it is not such an appliance as the automatic *Page 506 coupler, or iron handhold, or many other parts of the equipment of the car, coming clearly within the language of the statute. It may also be conceded that the primary purpose for which it is placed on the car or nailed to the standard is to keep the lumber steady — the witnesses concurring in that statement, and many of the authorities cited by the defendant tend strongly to sustain its contention in that respect. The question, however, upon which the defendant's liability depends is whether, in addition to the primary use, it was adapted to and used by the employees for a secondary purpose — descending from the lumber to the floor of the car for the purpose of adjusting the knuckle and making the coupling. If this contention is correct, and the custom of using the crosspieces was sufficiently established to fix upon the defendant (658) notice thereof, thereby imposing a liability to use reasonable care to have such crosspieces reasonably safe in their attachment to the standards, the authorities would seem to sustain the court in refusing to nonsuit the plaintiff. Judge Thompson, after stating the general rule in regard to the use of appliances not contemplated, says: "But this does not exclude the conclusion that the master may be liable when he has constructed an appliance for a particular use, but permits his servant to put it to another use, and in so using it the servant is injured through its negligent construction." 4 Thompson Neg., 4000. InBrimer v. R. R., 109 Mo. App. 493, it appeared that the car upon which the plaintiff was employed when injured was used for hauling dirt; it had standards on either side about 3 feet high with forked tops; planks were used to hold the dirt, and secured by being placed in the forks; the plaintiff worked on a car equipped with standards and planks; and he was ordered by the foreman to work on another car on which one of the standards had no fork, and one of the planks rested on the top of the standard — a flat surface. The plaintiff was ignorant of this condition, and while the train was in motion, to steady himself, he put his hand against the plank, one end of which was in the fork and the other on the standard, having no fork. It slipped off and the plaintiff was thrown from the car and injured. It was shown that the workmen were in the habit of steadying themselves, while the train was in motion, by putting their hands on the boards on the standards. Goode, J., said: "The main propositions invoked here are that the defendant was not guilty of negligence, inasmuch as the boards and standards were suitable for use as they were intended to be used, to wit, retaining the dirt on the car; that in attempting to use them for another purpose the plaintiff assumed the incident risk and that he was guilty of contributory negligence in not looking to see if both ends of the board rested in forks before he put his hand against it. We must decline to accept either *Page 507 of these propositions. They may be considered together, as (659) they were based on the theory that the planks and standards were intended only to keep the car-load of dirt in place, and being reasonably safe for that purpose, the defendant's whole duty was discharged. No doubt the primary purpose in supplying the car with standards and planks was to retain the dirt, but the railroad company was bound to use care to provide its workmen a reasonably safe place to work, and the evidence shows beyond doubt that this duty was disregarded. When laid in the forks of the standards, as they were in every instance except one, the planks afforded so convenient a means of steadying the standing workmen as the train moved along, that the men would inevitably put their hands against them to resist the jolting of the train. this was habitually done, according to the evidence, and should have been anticipated by the company, not only as a customary, but as a perfectly natural act. Now, in leaving an end of one plank loose on the smooth top of a standard, while all the other planks securely rested in forks 12 inches deep, the defendant furnished the plaintiff and his coworkmen an unsafe place to work; for the crew properly may be said to have worked in traveling to and fro between the loading and unloading places. At any rate, they were in the line of duty. As ordinarily the boards rested in the forks when the train was in motion, and thereby afforded the men a means of supporting themselves and a protection against being jolted from the train or jostled about, it was negligence not to have the boards lodged so they could not slip under pressure of the hand." In Babcock v. Johnson, 120 Ga. 1030, 1035, Lamar, J., discussing the principle involved in regard to the legal responsibility of the employer for injuries sustained in the use of instrumentalities furnished for other purposes, says: "Whether it would make any difference in the legal responsibility would depend in part upon his duty, at the time, in reference to the care, maintenance, and inspection of the instrumentality causing the peril. That, in turn, would in part depend upon the use for which it was intended and upon whether (660) the master knew that the servant must, or probably would, divert the appliance to a use not originally intended. For if a master directs an appliance to be used or knows that it will reasonably be used, for some purpose other than that for which it was originally intended, he puts it in the same position as if he had originally furnished it for that purpose. But the fact that it had been diverted to a new use will not render him liable, if that diversion occurred without his knowledge or consent." In McDonald v. Svenson, 25 Wn. 441, a longshoreman was injured in using, as a support, some part of the rigging of a vessel in passing from the ratline to the wharf and was injured in its giving *Page 508 away. The Court in discussing the question of liability, said: "The rigging was thus used commonly, and by the master, for the purpose of reaching the wharf. The respondent was justified in concluding that it was intended to bear a man's weight. That would be its natural and obvious purpose. And we are unable to see that, as a question of law, the respondent was guilty of contributory negligence in using the means provided for ascending from his work to the wharf." Bushby v. R. R.,107 N.Y. 374; Coates v. R. R., 153 Mass. 297. A large number of cases are cited by counsel for plaintiff and defendant showing some divergence of opinion in the application of the principle to the peculiar facts of each case. Mr. Labatt, in his valuable work on Master and Servant, reviews the cases and concludes: "If new functions are imposed upon an instrumentality by the master himself, or his representative, and the servant is thereby exposed to undue risks, the master must answer for the injury resulting from those risks, and cannot excuse himself by showing that the instrumentality was a suitable one for the performance of the work for which it was originally supplied. The master's acquiescence in the use of an appliance for some purpose other than that for which it was intended puts him in the same (661) position as if the appliance had been originally furnished for that purpose. Accordingly, a qualification of the rule that a servant cannot recover in the absence of evidence showing that the appliance in question was constructed with reference to the use to which it was being put when the accident occurred, is admitted in cases when it appears customary for employees to put it to that use, and that the master knew of this custom." 1 Labatt, sec. 27. This, we think, is the correct rule. His Honor, therefore, in the light of the evidence, could not have withdrawn the case from the jury for the reason that the use of the crosspiece by the intestate was improper. In Babcock v. Johnson, supra, there was no evidence that the brace to which plaintiff caught hold was used for the purpose of supporting the defendant's servants in the discharge of their duty. That the duty of the defendant to have the crosspiece secured in a reasonably safe manner for the use to which its servants customarily put it is not affected by the fact that the shipper puts it on in loading the car is well settled. If the defendant permits the shipper to load the car, it is as much, and in the same degree, liable for an injury sustained by its servant by negligence on the part of the shipper as if its own servant had loaded it. Bushby v. R. R., supra. It would seem that the rule adopted by the Master Car Builders' Association, requiring the crosspiece to be secured to the standard by three ten-penny nails at each end, the observance of which rule was recommended by defendant to its customers, is evidence that it was the safe way of *Page 509 securing the crosspiece, and the admission that in the crosspiece on the car upon which plaintiff's intestate was injured only eight-penny nails were used is evidence that the crosspiece was not reasonably secure. In the view which we are now considering the evidence, these facts were admitted. We cannot say as a matter of law that the failure to use the ten-penny nails, and the use of the smaller size, was no evidence of negligence in that respect. His Honor fairly submitted the (662) question to the jury.
While defendant notes a number of exceptions to the refusal to instruct the jury as requested and to the instructions given, counsel, in concluding their brief, say that the real controversy is dependent upon the 9th exception. "All other exceptions as appear in the record are abandoned except in so far as they have a direct bearing upon the 9th exception."
The motion for judgment of nonsuit involves in addition to the first issue the proposition that upon the most favorable view of plaintiff's evidence her intestate was guilty of contributory negligence. Before discussing this phase of the case it is proper to notice a question raised by defendant in regard to paragraph 19 of the complaint. After describing the position of her intestate on the car and the order of the conductor, she says: "The plaintiff's intestate then got down in a stooping position on the front end of the said lumber car, and in doing so he held to the piece of lumber that was nailed across the top of said lumber car. That he took hold of said crosspiece as a support to sustain him, as he had a right to do, and as was usual in such cases, in order to prepare the coupling, or see that it was prepared, so that it would couple to the said two cars for which said train was being backed." These two paragraphs are denied. Paragraph 19: "The plaintiff's intestate took hold of and held to the said crosspiece, which pulled loose with him, or let him fall on the track, when the car ran over him," etc. The answer contains the following, which was introduced by plaintiff: "Answering article 19 of the complaint, this defendant says that it admits that the plaintiff's intestate while attempting to climb down over the front end of the moving lumber car took hold of and held to the said crosspiece therein referred to, which pulled or was jerked loose," etc. Defendant contends that having introduced this admission for the purpose of proving the manner of the death of her intestate, that she thereby conclusively established the facts it purports to admit and that (663) plaintiff was precluded from contradicting such facts. That the effect of this admission is to establish the fact that intestate, when he took hold of the crosspiece, attempted to get off the moving car at the front end thereof. If this is so, and the defendant is correct in saying *Page 510 that it is solemnly fixed by such admission, there would seem to be no doubt that, in view of the entire evidence as well as the reason of the thing, intestate was guilty of gross negligence which would, as a matter of law, be the proximate cause of his death. Every witness says that this would have been dangerous, one saying that if this was the purpose, he must have "meant to commit suicide." If defendant is correct in its contention in this respect, of course no evidence in regard to a custom to take hold of the crosspiece for the purpose of getting over the end of the lumber onto the floor of the car to adjust the knuckle of the coupler was competent. It is difficult to understand how a same man would attempt to get off the front end of a moving car, thereby courting certain death. Certainly, the language of the complaint taken as a whole is not, in our opinion, reasonably capable of such construction. We cannot think that the defendant by making a modified admission of one allegation connected with others, being different links in the narrative, can change the entire theory of the case. There can be no doubt of the proposition laid down by the learned counsel regarding the probative force of admissions. We do not think that they sustain the conclusion sought to be drawn from that. The manifest purpose of the plaintiff was to allege that her intestate, being told by the conductor that they were to couple the cars, went to the front end of the lumber piled on the car and took hold of the crosspiece for the purpose of letting himself to the floor of the car to make the coupling. This, we think, is a fair construction of the pleadings, and while the only living witness to the accident was not introduced, this view is sustained by the (664) testimony. Every witness upon cross-examination said that while they had seen couplers get upon the floor of the car, they never saw one get off the front end of a moving car. The entire complaint in respect to the manner in which intestate came to his death should be read in connection with the admission in the answer and should be liberally construed with a view to substantial justice between the parties. Revisal, sec. 495.
Defendant next insists that his Honor should have held as a conclusion of law that plaintiff's intestate was guilty of contributory negligence, because he selected the most dangerous of two ways to do his work. That he should have gone to the rear end of the car, gotten upon the ladder on the end of the box car next thereto and swung himself onto the ground, going thence to the front of the flat car and making the coupling from the ground. The evidence in regard to the relative safety in doing this was conflicting. Dellinger says: "I do not think it would have been safer to have gone to the rear of the car and gone down by *Page 511 way of the ladder." It is not practicable to set out all of the testimony, but an examination of it discloses considerable diversity of opinion in regard to the safest way to have made the coupling, frequently the same witness upon cross-examination giving different opinions. In this condition of the evidence his Honor could not have taken the case from the jury and directed an affirmative verdict upon the second issue. This is too well settled to require the citation of authority. The language ofHolmes, J., in Coates v. R. R., supra, is applicable to this case. Discussing a similar question, he says: "The jury were warranted in finding that the plaintiff, although not directed to get on this particular car, naturally would do so and would be expected to do so in carrying out his orders, and in the way in which he did, and that he might have done so prudently if the jawstrap had been there. We cannot say, as a matter of law, that there was no prudent way of getting onto this kind of car for men experienced in the business, or that the way (665) adopted was not the best."In this case the conductor was in charge of the train; he gave the order to make the coupling, which it was the duty of plaintiff's intestate to obey in the usual, customary way, unless it was obviously dangerous. There was evidence tending to show that if the crosspiece had not given way he could with safety have performed the duty in the way he was pursuing. It would undoubtedly have required care after reaching the floor to have maintained his position on the very narrow space afforded, not over 10 inches, but by reason of the crosspiece giving way he never reached the floor, hence the conditions with which he would have been confronted did not arise. He may have successfully met them. The proximate cause of his fall was the failure of the crosspiece to sustain him. It is evident that the conductor did not intend to stop the train before making the coupling. He was approaching the car slowly. If there was any negligence in this respect it is under our fellow-servant law imputed to the defendant. Fitzgerald v. R. R., ante, 530. We have examined this record and the exhaustive, well-considered briefs, together with many of the authorities cited, with care. We find no error in his Honor's ruling. The jury, upon competent testimony and correct instructions, have passed upon every phase of the case.
The judgment must be
Affirmed.
Cited: Britt v. R. R., 144 N.C. 252; Dermid v. R. R., 148 N.C. 197;Blevins v. Cotton Mills, 150 N.C. 500. *Page 512
(666)