FAIRCLOTH, C. J., and FURCHES, J., dissent. In any aspect of this case the defendant is liable, whether the plaintiff was or was not guilty of contributory negligence, for the negligence of the defendant in not having self-couplers, and in sending a man to couple cars at all was a continuing negligence which existed subsequent to the contributory negligence, if there had been any, of the plaintiff, and was the proximate cause, the causa causans of the injury.
Six years ago (1892) in Mason v. R. R., 111 N.C. 482, at page 487, the Court, in considering "whether the defendant company was negligent in failing to provide what is known as the `Janney,' or some other improved coupler, which would obviate the necessity under any circumstances of going between the ends of the cars in order to fasten one to another," said: "We think that the time has arrived when railroad companies should be required to attach such couplers. . . . on all passenger cars; . . . and the new couplers have now (979) become so cheap, as compared to the value of the lives and limbs of servants and passengers, that it is not unreasonable to require that they provide them on peril of answering for any damage which might have been obviated by their use." While the Court declined on account of the expense to hold that the same was true at that time as to freight cars, it added, "Doubtless the day will soon come" when it would be negligence not to attach them to freight as well as passenger cars. Congress so thought, and in 1893 passed an act (27 U.S. Statutes at Large, p. 531) requiring self-couplers and air-brakes to be placed on all cars, freight as well as passenger, by 1 January, 1898, and this had been complied with as to "over 60 per cent of the freight cars" besides nearly all passenger cars, operating in interstate commerce, by that date. In Witsell v. R. R.,120 N.C. 557, the above citation from Mason v. R. R. was approved, and the Court held that, while it was not negligence to fail to provide the latest improved appliances, a railroad company was liable for any injury caused by the failure to use approved appliances that are in general use.
The railroad companies have of late procured from the Interstate Commerce Commission an extension, till 1 January, 1900, of the time by which self-couplers must be placed upon all freight cars used in interstate service, but this was for their accommodation and did not and *Page 616 could not relieve them from the legal liability incurred for injuries caused by their failure to provide "suitable appliances in general use" where the use of such would have prevented the injury. It only relieved them from the penalty provided in the act of Congress.
The Eleventh Annual Report (1897) of the Interstate (980) Commerce Commission, issued by authority of the United States Government, and based upon the reports of the railroad companies themselves, shows (p. 80) that of railroad employees (leaving out passengers altogether) 1,861 were killed and 29,969 were wounded in the year ending 30 June, 1896, being greater loss than in many a battle of historic importance. Of the trainmen, this report (p. 130) shows that nearly one in nine had been killed or wounded that year — a total of over 17,000. Of these casualties it is officially stated, 229 were killed and 8,457 were wounded in this single particular of coupling and uncoupling cars. As these figures are reported by the corporations themselves, it is not probable that they are overstated. If the railroads not reporting to the Interstate Commerce Commission (because not engaged in interstate carrying) should be added, the figures of killed and wounded from this cause would doubtless be largely increased. By these figures, for the last year reported, nearly 9,000 men had been killed and wounded in coupling and uncoupling cars. As the corporations on their own motion or under compulsion of congressional action and judicial decision have adopted self-couplers on the passenger cars and on "over 60 per cent" of the freight cars, it will be seen how many thousands of lives and bodies have been saved thereby, but that nearly 9,000 men should in one year be killed or wounded "coupling and uncoupling cars" on the freight cars which, up to 30 June, 1896, still lacked self-couplers, is the highest proof of the duty of the courts to enforce liability for failure to provide self-couplers in every case where an injury occurs from that cause. That nearly 9,000 men should still be killed and wounded in one year for failure to furnish appliances which are so widely in use and which (981) would entirely prevent such accidents, points out the duty of the courts.
In Witsell's case, supra, at page 562, this Court says: "If an appliance is such that the railroads should have it, the poverty of the company is no sufficient excuse for not having it." But in fact this defendant reports that it has issued bonds and stocks to the amount of $76,557 per mile (N.C. R. R. Com. Report, 1896, at page 246). This is presumed to have been paid in by its issuing them, and hence it should be able to furnish appliances which will protect its employees from such injuries as this, and should be held liable for failure to do so, especially as the Interstate Commerce Commission report shows that the self-couplers can be put on at the cost of $18 per car. *Page 617
In a large majority of the States, as well as by the Federal Government, railroad commissions have been created to supervise and regulate the charges and the conduct of these corporations. The courts will be very derelict in their duty if they do not force justice in favor of employees as well as the public. Six years ago this Court said it would soon be negligence per se whenever an accident happened for lack of a self-coupler. Congress has enacted that self-couplers should be used. For their lack this plaintiff was injured. It is true the defendant replies that the plaintiff remained in its service, knowing it did not have self-couplers. If that were a defense, no railroad company would ever be liable for failure to put life-saving devices, and the need of bread would force employees to continue this annual sacrifice of thousands of men.
But such is not the doctrine of "assumption of risk." That is a more reasonable doctrine and is merely that when a particular machine is defective or injured, and the employee, knowing it, continues to use it, he assumes the risk. That doctrine has no application (982) where the law requires the adoption of new devices to save life or limb (as self-couplers) and the employee, either ignorant of that fact or expecting daily compliance with the law, continues in service with the appliances formerly in use.
The defendant, after notice of six years from this Court, and with notice of the act of Congress, and also from the general adoption of self-couplers that it should use them, was guilty of negligence in failing to do so. The injury to the plaintiff could not have occurred save for the failure of the defendant to comply with its duty in this regard, and the court below should have held it liable to the plaintiff upon the defendant's own evidence. Hence, if there was error, which we do not admit, it was necessarily harmless error. There was plainly no error upon the issue as to the amount of damages.
Affirmed.