dissenting. This is a petition to rehear the decision in this case, 130 N. C., 506. No fact is shown to have been overlooked, nor any direct authority, and upon examination of the briefs on the former trial it will be seen that the petition simply presents the same points for re-argument. In Dupree v. Ins. Co., 93 N. C., 239, Smith, C. J., quoting Chief Justice Pearson in Watson v. Dodd, 72 N. C., 240, says: “No case ought to. be reheard upon a petition to rehear, unless it was decided hastily and some material point was overlooked, or some direct authority was not called to the attention of the Court.” This has been often quoted with approval, among other instances by Furches, J., in Capehart v. Burrus, 124 N. C., at page 50.
*577The amended complaint alleges that “The defendant was operating a train of cars” at the time and place of the injury to the plaintiff, on which then, “and for a long time prior thereto, it negligently permitted. the couplers to be out of repair and defective, to such an extent that the cars in said train, and other cars belonging to the defendant at Clarkton, which were to be made part of said train, could not be coupled without going between the cars.” Is not this a clear allegation of negligence, and of a violation of the U. S. Act of 1893 ? The complaint further alleges that, the train being uncoupled, and a part left below the beginning of the switch, and a part above it (both on the main line), “the plaintiff was ordered by the conductor in charge of said train, whose orders the plaintiff was bound to obey, to remain near the cars on the main track below said side track, for the purpose of coupling those, cars to the cars upon the side track, which order the said conductor well knew could not be performed without going between said cars, on account of the condition of the ears-, and the said cars were negligently permitted to roll very rapidly by means of what is known as ‘kicking cars’ along said side track and on to the main track, and negligently and violently came in contact with cars where plaintiff was”; that by reason of the defendant having “negligenly permitted the coupler attached to the cars on said side track to remain out of repair,” the lip was closed, “which made it necessary for the plaintiff to go between said cars in order to couple the same,” and that “while the plaintiff was endeavoring to perform the order of said conductor, and while coupling said cars, and without fault on his part, he was greatly injured and damaged by reason of the negligence of the defendant, as herein set forth,” etc. Here, the allegation is explicit of negligence in permitting couplers to be and remain out of repair, both on the train on the main line and on cars on the side track, which were kicked back, and that they *578could not be coupled without going in between the cars; also, negligence in violently kicking thexn back, and in the conductor ordering the plaintiff to' make the connection, “which order the conductor well knew could not be performed without going between said cars,” on account of the defective couplers. There was evidence tending to prove each and every allegation above stated, and the jury, which, under the Constitution and laws is guaranteed to every litigant, no matter how humble, as the sole tribunal which may determine issues of fact, has sustained the charges, and the jury were unanimous, as the law requires of the triers of fact. And the parties, in order to secure triers of fact to which neither side could have any legal objection, had been allowed such challenges as were proper, for there is no exception on that ground. Piad there been, notwithstanding, any ground to believe that the verdict was against the weight of the evidence, or to suspect that justice had not been done for any other reason, the trial Pudge, who heard the evidence and knew all the incidents of the trial, had full authority to set the verdict aside. Bird v. Bradburn, at this term. Plis refusal to do so can not be reviewed by us. We, who did not hear or see the witnesses, can not possibly be more competent than the jury and the trial Judge to determine, from the imperfect transmittal of the evidence on paper, without tone or emphasis, as to the weight to be given to the respective parts thereof.
There was evidence that “the coupler had been out of fix three months; that the conductor knew it; that the link was gone; that with that link gone, the. cars will not couple to save your life without using some means to open the thing; that in the condition that coupler was in, it was not possible to couple zoUhout taking hold with hand or foot” — all these sentences are quoted from the evidence in the record. And further, it is stated in the evidence sent up: “The coupler was broken. *579It was an automatic coupler. The link that pulls up the draw pin was out, so you could not use the coupler without the use of the foot or something’; and further, “you can not couple if the draw pin won’t work.” Even the superintendent of the defendant says': “If the statement made by the young man is true, and the chains were gone, it would be necessary for him to go in and lift it up.” It has been suggested that the absence of the link was not a very material fact; but the evidence by which a jury must reach its conclusions, according to the weight they may give it, contains this: “Question. Does that link have anything to do with the coupling? Answer: Yes, sir. You can not couple if the draw pin won’t work.” Again: “Question: Why did you not have time tO' go and see to them while they were standing still ? Answer: The cars were rolling when the Captain instructed me to go couple them.” The conductor says: “The 'cars started and had cleared the switch when I started down to the depot”; and the plaintiff’s evidence is: “Question: Where were you when the cars commenced moving? Answer: I was' standing there by Captain Byrd, and he said, ‘Son, you run up and couple those cars while I run up to the warehouse and get orders.’ ” To order the plaintiff to go in to make the coupling, especially when the cars were moving, was of itself negligence, even before automatic couplers were required (Mason v. R. Co., 111 N. C., 482; 18 L. R. A., 845; 32 Am. St. Rep., 814; (1892), and it is doubly so now, when, as here, there is evidence in the record that the conductor knew that the coupler was out of order, and well knew that the coupling in that condition could not be made without going in between the cars.
Aside from the negligence of the conductor in giving such order, the permitting the couplers to remain out of order more than three months was itself a violation of the Federal statute (2 March, 1893, 27 Stat., 531), and negligence. In *580a remarkably well considered ease, in the U. S. Circuit Court for Iowa, Voelker v. R. Co., 116 Fed. Rep., 867 (decided just after the opinion in this case was filed in June last), Shiras, J., holds that “A carrier, by permitting couplers, originally sufficient, to become worn out and inoperative, is within the prohibition of the act of Congress, 2 March, 1893, against using cars in interstate commerce not equipped with couplers, coupling automatically.” Also, he says that the company was liable where, the coupler being out of order, the employee “undertook to fix it so the coupling might be made, and while so engaged he was caught between the cars and received injuries causing his death.” This is “on all fours,” except that here the negligence of the defendant crippled their man but did not kill him. In that case, as in this, the defendant urged that it uas error to permit the jury to determine that the “condition of the coupler was the proximate cause of the injury.” Judge Shiras overruled the objection and makes' the following pertinent ruling, without which the statute would become a delusion and cease to be any protection to the hundreds of thousands of laboring men whose lives and limbs were for so many long years exposed to needless peril for the lack of such statute. ITe says:
“The statutory requirement with, respect to equipping cars with automatic couplers ivas enacted in order to protect railway employees, as far as possible, from the risks incurred when engaged in coupling and uncoupling cars. If © railway uses in its business cars which do not conform to the statutory requirements, either because, they never were equipped with automatic couplers, or because the company, through negligence, has permitted the couplers, originally sufficient, to become worn out and inoperative, then the company is certainly not performing the duty and obligation imposed upon it by the statute, and is clearly therefore chargeable with negligence in thus using an improperly equipped car; and the *581company is boimd to know that if it calls upon one of its employees to make a coupling with a coupler so defective and inoperative, that it will not couple by impact, and that to make the coupling the employee must subject himself to all the risks ancl dangers that inhered in the old and dangerous link-and-pin method of coupling, it is subjecting such employee to the very risk and danger which it is the purpose of the statute to protect him against, so far as that is reasonably possible. Subjecting an employee to risk to life and limb by calling upon him to use appliances which have become defective anl inoperative through the failure to use proper care on the part of the master is certcmily negligence, which will becom.e actionable if injury results therefrom to the employee, and liability therefor can not be avoided by the plea that if the company was thus guilty of actionable negligence in this particular, it can not be held responsible therefor because it ivas guilty of another act of negligence which aided in causing the accident. This accident happened because Yoel-ker, in the performance of his duty, was called upon to place his person in a position where he siigt-it be caught between the cars he was expected to couple together. He was required to place himself in this dangerous position because of the negligent failure of the company to have upon the car a coupler in proper and operative condition, and certainly this negligent failure of the company was the proximate cause of the accident.”
This is practically the same ruling which this was the pioneer Court to make in Greenlee v. Railroad, 122 N. C., 911; 41 L. R. A., 399 (26 May, 1898), and which has been reiterated in Troxler v. Railroad, 124 N. C., 189; 44 L. R. A., 313; 10 Am. St. Rep., 580; and so many cases since, down to and including Fleming v. Railroad, at this term. Those cases practically settle also the issue of contributory negligence, for as the injury would not have happened, and *582the plaintiff would not bay© bad to go> between the oars at all, if the couplers bad been in proper condition, it is immaterial whether be went in negligently or not, for the negligence of the defendant in not having couplers, and in good working order, was the proximate cause. Voelker v. R. Co., supra.
In Harden v. R. Co., 129 N. C., 355; 55 L. R. A., 784; 85 Am. St. Rep., 747; the Court affirmed the Judge below, who bad charged (quoting from Greenlee’s case) as follows: “If you find that the freight train was not fully provided with modern self-acting couplers, and that the plaintiff would not lime been injured had the cars been so provided, you will find the first issue ‘Yes,’ and the second issue ‘Nod ” This ruling has just been reiterated in Fleming v. R. Co., at this term.
There was some conflicting evidence, but that was the province of the jury. Tbe plaintiff’s testimony above referred to is that if the coupler bad been in good condition, be would not have bad to go in between the cars nor to kick the bumper, and be is corroborated by the superintendent of the defendant company, who says if the coupler was in the condition the plaintiff testified, it was “necessary for him, to- go in and lift it up.” Whether bis manner of “lifting it up” was negligent or not, is immaterial in view of our uniform decisions from Greenlee’s case down to Fleming v. R. Co., at this term, that the proximate cause, the causa causans, is the negligence of the railroad company in not complying with the law which requires it shall have automatic coupling apparatus, which will not require an employee to go in between the cars at alb
The plaintiff could not assume a risk which the law forbids the railroad company to impose upon him. Besides, assumption of risk does not apply to railway employees in this State, since the act which is printed as chapter 56, Private Laws 1897. Coley v. R. Co., 128 N. C., 534, and other cases sustaining it, which are collected and reaffirmed in Mott *583v. R. Co., at this term. Indeed, on the evidence here, assumption of risk would not apply to any employee. Lloyd v. Hanes, 126 N. C., 359; Smith v. Baker, App. Cas. (1891), 325, cited and approved; Williams v. Birmingham, Co., 2 B. D. (1899), 338.
Humanity, justice, and the soundest principles of public policy alike require that the act of Congress, 2 March, 1893, and the principles laid down by Judge Shiras in the above cited case of Voelker v. Railroad, and by the uniform rulings of this Oourt from Greenlee’s ease down to Fleming’s, should be sternly upheld and rigidly enforced. In the report of the Interstate Commission for 1902, it is said that in 1893, when the act requiring automatic car couplers were enacted, there were 4-33 men killed and 11,211 wounded in coupling cars in this country, and that, by reason of the gradual enforcement of that law, the number of killed and wounded in car coupling for the year ending 30 June, 1902, aggregating a little over 2,000 — a diminution of more than 9,500 in the number of men killed and wounded annually, though the number of railway employees has increased 200,000 in the same period of time, which, at the same ratio, would have caused 15,000 men to have been killed and wounded annually in coupling cars, if there had been no enforced use of automatic coupler's by the law. The Commission says the decrease of accidents in that particular (car coupling) has been 68 per cent- fewer killed, and 81 per cent fewer injured than in 1893 (without adding in the further loss' which would have occurred among the additional 200,000 employees), which decrease they attribute to this, legislation and its enforcement by the Courts. They point Out that in no other particular have injuries to passengers or employees been diminished, but that in fact there is a decided increase.
If the law is effectively enforced, the annual loss still existing of 2,000 killed and wounded in manual coupling will *584entirely disappear. But if, notwithstanding the law requires automatic car couplers, they can be left off or (which is the same thing) allowed to remain out of repair, and when an employee is ordered in to make the coupling, which has become non-automatic, these powerful corporations can contest before the jury whether the railroad company is not relieved from all responsibility because the employee might have done the act illegally required of him in a more prudent manner, and carry that contest up from Court to Court, then the provisions of a law, which was enacted from the protection of this vast body of useful and industrious men, is a nullity— construed away by the Courts' — and they are handed over to the tender mercy of a power which saw with indifference the number of killed and wounded in coupling cars mount up, year after year, till the figures reached the annual total of near 12,000. In that steady increase there was no halt until the force of a humane and irresistable public opinion compelled the use of automatic couplers, though their life and limb saving properties had been well known to railroad managers for a quarter of a century. The evidence is that this injw'y to the plaintiff could not possiblyhave happened if this law had been complied with by the defendant.
This Court, which was the pioneer to lay down, independent of legislative enactment, the requirement of justice that such appliances should be used, should not be the first to construe away the efficacy of what is now a Federal statute, applicable to the defendant and all other railroads throughout the Union engaged in interstate commerce.