dissenting: The plaintiff was an employee of the defendant company as a laborer on its yard, at its station in Asheville, and while so employed was injured by defendant, for which he brings this action. The yard was under the management-and control of one Adams, under whom the plaintiff worked, and Adams had the right to discharge the plaintiff for disobedience of his orders. A part of the business of the plaintiff was to couple and uncouple cars, and when he was employed he was told he must not couple with his hands, but with a stick. At the time of the injury Adams and his force, among whom was the plaintiff, were engaged in making up a train on a side track by taking cars off the main track and putting them on the *983side track. This was done by what is called “kicking the cars,” that is by pushing a car with the engine, at the start, and then letting the car run by its own momentum. There had been two cars kicked down the track and they had become stationary, and the plaintiff was injured when the third car was “kicked” down. The plaintiff contends that he was injured between the first and second cars ‘ ‘kicked” down, and the defendant contends that he was hurt between the second and third cars ‘ ‘kicked” down.
The plaintiff contends that he was injured in attempting to put in a coupling link, which could only be done with the hand; and the defendant contends that the plaintiff was hurt in attempting to make a coupling with his hand instead of with a stick as he was directed to do, and in this way contributed to his injury, and that this negligence was the proximate cause of the injury, and plaintiff cannot recover on that account.
It was in the night (dark) when all this occurred, and the plaintiff had a lantern, and his theory is that the second car being between him and the engine, he could not see the engine and the third car; that it was this third and last car kicked down the track, striking the second car, which caused it suddenly and violently to crash against the first car, that caused the injury; that Adams knew he was between these cars — that he had just before the injury told the plaintiff to “hurry up with coupling the cars on the side track, as train No. 44 was coming, and he wanted to get out of the way. ” The plaintiff offered other evidence besides his own, tending to sustain his contention, and the defendant offered evidence to contradict the plaintiff — to show that the injury of plaintiff was received between the second and third cars while attempting to effect a *984coupling with his hand, contrary to orders. And among other evidence introduced for this purpose was the testimony of Dr. Hilliard who testified that he was the surgeon of the defendant and was required by the company to examine — to poll — the plaintiff as to how he got hurt. And if he got any thing favorable to the company, we suppose he was to become a witness for it. This evidence was objected to by the plaintiff, but we think it competent as declarations of the plaintiff, to be taken by the jury for what it was worth, considering the circumstances under which it was taken. The defendant contended that it was competent as a part of the res gestae, and cited Southerland v. Railroad Co., 106 N. C., 100, as authority for this position. Southerland v. Railroad, is based upon entirely different principles. In that case, it was as to what the engineer- — a third person — said, and of course it was hearsay, unless it was a part of the res gestae.
This appeal' depends upon the charge of the court —upon prayers given and prayers refused, as there seems to have been no charge except what is contained in the prayers for instruction. It was important to determine the question whether the injury was received between the second and third cars as plaintiff contended, or between the second car kicked down and the last car as defendant contended. If between the two cars, as contended by plaintiff, his theory is consistent, whether correct or not; while, if it occurred between the two last cars kicked down, his theory would appear to be inconsistent with his contention that he could not see the approaching car, as there would he no intervening car to prevent his seeing the approach of the last car, if he was hurt between the two last cars kicked down. It does not seem to us .that the jury were sufficiently *985instructed as to this; and it also seems to us that there is too much said in plaintiff’s prayers for instruction (•which were given) about the pin not being in its proper place, and having to be hunted by the plaintiff, this not being supported by evidence in the case.
There was no written contract between plaintiff and defendant that plaintiff should not couple cars with his hands. But it was in evidence and admitted by the plaintiff that when he hired to the defendant he was instructed never to couple cars with his hands.
But the court was asked by the plaintiff to charge the jury that plaintiff had signed no written contract not to couple with his hands and, this being so, the rule of the prudent man applies, that is, did the plaintiff act with ordinary prudence and care in attempting to make this coupling, if he was making a coupling, and if he did, he would not be guilty of negligence. The court gave ■this instruction and defendant excepted. In this there was error. There is no special virtue in contracts of this kind being in writing. There is no statute requiring them to be in writing, and it does not appear to us that this was a contract, but an instruction from Adams/ the man who employed the plaintiff.
But the plaintiff contends that whether it was a contract or an instruction, it was abrogated by Adams’ saying to the plaintiff “Hurry up with your coupling, No. 44 is coming and I want to get out of the way.” If Adams.said this, it does not revoke or tend to revoke the instruction before given “not to couple with his hands.” Mason v. Railroad, 114 N. C., 718, on page 723. There is no evidence showing or tending to show that Adams knew or had reason to know that the plaintiff could not effect a coupling as quickly with his stick as with his hand. If plaintiff’s contention were correct, it *986would be dangerous for a railroad “boss” to hurry up his hands, lest he abrogated all former orders and directions. This order was not inconsistent with the previous instruction and does not fall within Shadd v. Railroad, 116 N. C., 968; Patton v. Railroad, 96 N. C., 456.
There were other exceptions discussed by counsel b ut they will probably not arise on a new trial, and we do not discuss them.
The plaintiff by accepting service, under the defendant to work on its yard in shifting and coupling cars, accepted all the ordinary risks of this service, without the special instruction not to couple with his hands. But it seems to us that, as a matter of economy, to say nothing of the suffering and loss of human life, railroads would be induced to get and use the more modern and safer appliances. They will have to do this' soon, or answer for damages caused by -the lack of them.
This was written as the opinion of the court; but since it was written the Court has changed its opinion, and I file it as my dissenting opinion.