Pigford v. Norfolk Southern Railroad

Walker, J\,

after stating the ease: The duty of the defendant to supply help sufficient for the safe performance of the work allotted to the plaintiff is not questioned by the appellant, but it is contended that if it failed to do so, the plaintiff was guilty of such negligence in going on with the work, after the refusal to comply with his request, as bars his recovery, it being an act of contributory negligence on his part, which was the proximate cause of the injury to him. We cannot assent to this proposition, except in a qualified sense. The doctrine of assumption of risk is dependent upon the servant’s knowledge of the dangers incident to his employment and the ordinary risks he is presumed to know. But extraordinary risks, created by the master’s negligence,' if be knows of them, will not defeat a recovery, should be remain in tbe service, unless tbe danger to wbieb be is exposed thereby is so obvious and imminent that tbe servant cannot help seeing and understanding it fully, if be uses due care and precaution, and be fails, under tbe circumstances, to exercise that degree of care -for bis own safety wbieb is characteristic of the ordinarily prudent man. 26 Oyc., 1196-1203. We consider tbe rule.to have been settled by this Court in Pressly v. Yarn Mills, 138 N. C., 410, and subsequent decisions approving it.. Justice Hoke, for tbe Court, in that ease, approving what bad formerly been decided in Hicks v. Manufacturing Co., gave this clear statement of tbe rule, as deduced from tbe authorities: “While tbe employee assumes all tbe ordinary risks incident to bis employment, be does not assume tbe risk of defective machinery and appliances due to tbe employer’s negligence. These are usually considered as extraordinary risks which tbe employees do not assume, unless tbe defect attributable to tbe employer’s negligence is obvious and so immediately dangerous that no prudent man would continue to work on and incur tbe attendant risks. This is, in effect, referring tbe question of assumption of risk, where tbe injury is caused by tbe negligent failure of tbe employer to furnish a safe and suitable appliance, to tbe principles of contributory negligence; but it is usual and in most cases desirable to submit this question to tbe jury on a separate issue as to assumption of risk, as was done in this case. When tbe matter is for tbe jury to determine on tbe evidence, it may be well to submit this question to their consideration on tbe standard of tbe prudent man, in terms as indicated above. Tbe charge on tbe third issue substantially does this, and tbe language" used is sanctioned by tbe authorities,” citing Sims v. Lindsay, 122 N. C., 678; Lloyd v. Hanes, 126 N. C., 359; Coley v. R. R., 129 N. C., 407; Marks v. Cotton Mills, 135 N. C., 287.

There is a clearly marked line of divide between assumption of risk and contributory negligence, tbe former being confined to tbe ordinary perils of tbe service, and tbe servant could not be held by bis contract, or upon any other ground, at least, in a technical sense, to have assumed tbe risk of bis master’s negligence, as tbe contractual relation is tbe other way; tbe master impliedly undertaking, by tbe contract of service, to exercise proper care for tbe servant’s safety by selecting reasonably fit and safe tools and appliances, and providing a reasonably safe place and a sufficient and competent force for tbe performance of tbe work, and, perhaps, other duties, not necessary to be .here enumerated. “ ‘He complies with tbe requirements of tbe law in this respect if, in tbe selection of machinery and appliances and tbe employment, of sufficient help, be uses that degree of care which a man of ordinary prudence would use, having regard to bis own safety, if be were supplying them for bis own personal use. It is culpable negligence which makes tbe employer liable, not a mere error of judgment. We believe this is substantially tbe rule which has been recognized as tbe correct one and recommended for our guide in all such cases. It measures accurately the duty of the employer and fixes tbe limit of bis responsibility to bis employee/ citing Harley v. B. C. M. Co., 142 N. Y., 31. So that tbe liability of tbe employer to tbe employee in damages for any injury tbe latter may receive, while engaged in bis work, depends upon whether tbe employer has been negligent. Avery v. Lumber Co., 146 N. C., 592; Barkley v. Waste Co., 147 N. C., 585.” Cotton v. R. R., 149 N. C., 227. If, therefore, tbe master is culpably negligent and tbe servant receives an injury which tbe law will impute to that negligence as its proximate cause, tbe master will be held liable in damages, because tbe master’s breach of duty was not by any means an ordinary peril of tbe service within tbe scope of tbe contract, but an extraordinary one, for which tbe master is liable, unless tbe servant’s own negligence contributed to the injury, and is considered to be its proximate cause. If tbe master, by bis own negligence, baa brought" about a dangerous condition with which tbe servant is confronted, tbe obviousness of tbe danger and tbe impression tbe situation would make upon a man of ordinary prudence and discretion with respect to bis own safety would determine tbe servant’s measure of duty to himself which tbe law will require of him under tbe circumstances, always bearing in mind that as tbe question of negligenee is composed of law and fact, it is difficult, if not impossible, to extract from the authorities a rule so nicely and comprehensively expressed as to fit all cases. There is no such touchstone in the law by which we can try and test the legal quality of any act of negligence, but with the general principle in hand, each case must be decided upon the facts peculiarly its own.

Subject to the Act of 1897, ch. 56 (Eevisal, sec. 2646), the servant assumes only the ordinary and incidental risks of the service, those which necessarily and naturally, in the course of things, accompany it, and which excludes the idea of any negligence of the master, and if the master negligently injures him, he must show negligence of the servant in order to defeat a recovery.

In several recent cases this question has been considered favorably to the views herein expressed. Justice Allen said in Norris v. Cotton Mills, 154 N. C., 474: “The charge to the jury was, we think, in some respects more favorable to the defendant than it was entitled to, and particularly as to the doctrine of assumption of risk, as the employee never assumes the risk of any injury caused by the failure of the employer to perform a duty which he cannot delegate, and the duty to provide a reasonably safe place to work is one of them.” Hamilton v. Lumber Co., 156 N. C., 519; Pritchett v. R. R., 157 N. C., 88.

It is better for the servant that his case should be decided upon a principle of contributory negligence, as it casts the burden of proof upon the defendant under our law. Pell’s Eevisal, sec. 483.

The defendant contended that when the plaintiff’s request for more help was refused, and he was directed to go on with the work and do the best he could without it, he should have quit the service and not have exposed himself to the danger which resulted in his injury. This would be a harsh rule to apply in such a case. There are many reasons, some humane, why it should not prevail. The master should be fair and just to his servant. It is best for both that he should be so. The latter is entitled to fair treatment, just compensation, proper facilities for doing his work and reasonable care and protection while engaged in it. The servant is not required to retire from the service or to refuse to go on with, bis work, unless, as we bave said, tbe danger is obvious, or be knows and appreciates it.. He may know of tbe risk without fully appreciating tbe danger. ’Whether such a situation was presented to him at tbe time- of tbe injury is a question for tbe jury, to be decided generally upon tbe rule of tbe prudent man.

We cannot do better than to reproduce here tbe carefully expressed views (by Justice Solee) in Hamilton v. Lumber Co., 156 N. C., at p. 523, as they seem to be specially applicable to tbe facts of this case:

“On tbe conduct of tbe intestate, while we bave held that our statute, known as tbe Fellow-servant Law, Revisal, sec. 2646, applies to these logging roads, we do not think that tbe terms of tbe law, giving a right of action to an employee injured by reason of defective 'machinery, ways, or appliances,’ refer to conditions as now disclosed in tbe testimony; tbe term 'ways,’ we think, having reference rather to roadways and objective conditions relevant to tbe inquiry and which it is the duty of tbe employer to provide. Tbe negligence, if any, imputable to defendant on tbe testimony,, is by reason of negligent directions given and methods established, by the employer, subjective in their nature and to which tbe statute on tbe facts presented was not intended to apply. It is well understood, however, that an employer of labor may be held responsible for directions given or methods established, of tbe kind indicated, by reason of which an employee is injured, as in Noble v. Lumber Co., 151 N. C., 76; Shaw v. Manufacturing Co., 146 N. C., 235; Jones v. Warehouse Co., 138 N. C., 546, and where such negligence is established, it is further held, in this jurisdiction, that tbe doctrine of assumption of risk, in its technical acceptation, is no longer applicable (Norris v. Cotton Mills, 154 N. C., 475; Tanner v. Lumber Co., 140 N. C., 475), but tbe effect of working on in the presence of conditions which are known and observed must be considered and determined on the question whether tbe attendant dangers were so obvious that a man of ordinary prudence and acting with such prudence .should quit the employment rather than incur them. Bissell v. Lumber Co., 152 N. C., 123; and on tbe issues, as to plaintiff’s conduct, tbe fact tbat tbe particular service was rendered with tbe knowledge and approval of tbe employer or bis vice principal or under bis express directions, if given, also tbe employee’s reasonable apprehensions of discharge in case of disobedience, etc.,' may be circumstances relevant to tbe inquiry.”

It is as much the duty of tbe master to exercise care in providing tbe servant with reasonably safe means and methods of work, such as proper assistance for performing bis task, as it is to furnish him a safe place and proper tools and appliances. Tbe one is just as much a primary, absolute, and nondelegable duty as tbe other. 'When be entrusts tbe control of bis bands to another,, be thereby appoints him in bis own place, and is responsible for tbe proper exercise of tbe delegated authority, and liable for any abuse of it to tbe same extent as if be bad been personally present and acting in tbat behalf himself. This principle is well settled. Shaw v. Manufacturing Co., 146 N. C., 239; Tanner v. Lumber Co., 140 N. C., 475; Mason v. Machine Works, 28 Fed. Rep., 228; R. R. v. Herbert, 116 U. S., 642; Shines v. Cotton Mills, 151 N. C., 290; Pritchett v. R. R., supra; Holton v. Lumber Co., 152 N. C., 68.

It may be assumed' tbat tbe law does not impose on tbe master any duty to take more care of bis servant than tbe latter should take of himself, their respective obligations in this respect being equal and tbe same — tbat is, to be careful and to adjust their conduct to tbe standard of tbe ordinarily prudent man. In measuring tbe extent of this duty, tbe jury will always consider their situation and opportunities, their comparative ability to know tbe peril of tbe service and to realize tbe attendant danger and any other circumstance shedding light upon tbe main or principal question of negligence and its proximity to tbe injury inflicted.

We cannot say, as matter of law, upon tbe evidence in this case, that tbe danger of continuing to load tbe car with tbe rails upon the slanting skid, without additional help, was such as to bar a recovery. Whether it was so great and obvious tbat no man of ordinary prudence would have gone on with tbe work in its presence was properly submitted- by tbe court to tbe jury, under what we bold to be correct instructions. Tbe charge, in every respect, seems to have been as favorable to the defendant as the law permitted or it had any right to expect. The judge would not have been warranted in practically taking the case from the jury by such a peremptory charge upon both of the issues upon negligence as he was requested to give. It was the province of the jury to find the facts, under instructions of the court as to the law. Nor does it make any difference that the work required of the plaintiff was not complicated, but simple in its nature. He was entitled, in any view of it, to a reasonably sufficient squad of hands to help him perform it. In this connection, we may well consider the case of Shaw v. Manufacturing Co., 146 N. C., 235, the facts of which are very similar to those in this case. The plaintiff, Shaw, was told to remove a bed-plate and plunger from one part of the defendant’s mill to another, and reported to the superintendent that he needed a large chain-block for the purpose. His request was refused, and he was directed to do the work with his two small chain-blocks. He protested that they were too small, and again asked for a larger chain-block, but was told to go ahead and use the small ones anyway. Shaw also applied for more help, but none was supplied. With reference- to these facts, this Court, by Justice Brown, said: “The evidence shows (further) that insufficient help was furnished (one man and three inexperienced colored boys), and, upon plaintiff’s protesting that such help was insufficient, Constable said he knew the three boys were not ‘worth a damn,’ but that they were all he had, and he directed plaintiff to go ahead, and promised to furnish more help, which he failed to do. Upon this uncontradicted evidence his Honor would have been justified in charging the jury that, if believed to be true, it proved that the defendant’s superintendent had been undeniably negligent in his duty to plaintiff.” The only difference between the two cases is that in the Shaw case the evidence -was held to be uncontradicted, while in this case it was disputed, and the court left it to the jury to find the facts, and they found that plaintiff’s version was the true one. This assimilates the cases, and they cannot be distinguished upon the ground that in Shaw's case one of the appliances was defective and unusable. The Court lays no particular stress upon that fact. Sufficient belp was just as necessary to safeguard tbe servant as flawless implements. Tbe two cases, in tbeir essential and controlling’ facts, are substantially alike, and tbe same rule must govern botb.

Defendant submitted many prayers for instructions. Some of tbem assumed facts as established wbicb were disputed, and others called upon tbe court to treat tbe question of negligence as one of law. Those that were proper in form, and applicable to tbe case, were substantially given. Tbe hypothetical question put to tbe. expert, Dr. Oaton, as to tbe cause of tbe hernia, while, perhaps, not as full as it might have been, combined substantially all tbe facts and was sufficiently explicit for him to give an intelligent and safe opinion. Tbe evidence would justify a finding of those facts by tbe jury. This is sufficient. Summerlin v. R. R., 133 N. C., 551; S. v. Bowman, 78 N. C., 509; S. v. Cole, 94 N. C., 958; S. v. Wilcox, 132 N. C., 1120.

There are other exceptions wbicb, upon a careful review of tbem, we do not think require separate discussion. Tbe central and controlling question relates to tbe conduct of tbe plaintiff in tbe presence of a dangerous situation thrust upon him by defendant’s negligence, in ignoring bis reasonable request for more belp to do tbe work of lifting tbe heavy rails, wbicb was made more difficult by tbeir twisted condition. Plaintiff, nevertheless, attempted to do tbe work by tbe command of tbe defendant’s superintendent and alter ego, Spradlin, who was in authority over him, with power to discharge him for disobedience of tbe order. Tbe jury did not think tbe danger was so obvious or menacing that a man of ordinary prudence would not have faced it in tbe effort to comply with the instruction to go ahead and do tbe best be could with the belp be then had. He was injured seriously in bis endeavor to follow Spradlin’s direction, and tbe jury having further found that it was a negligent order and that plaintiff was without fault, tbe defendant must answer to him in damages for tbe consequent injury.

Tbe delay in bringing tbe suit is, by itself, of no legal -significance. It was a circumstance for tbe jury to consider upon tbe general question, and was explained by the fact that tbe disease produced by tbe injury was almost imperceptibly slow in its progress and development.

If tbe remarks of plaintiff’s attorney, in bis address to tbe jury, were improper — tbougb we are not ready to admit it, but ratber tbink tbey were legitimate — it could not, in our view of tbe facts, bave so seriously affected tbe rights of appellant as to call for a reversal. There must be prejudice by tbe offending counsel of one party to bis adversary’s rights; to induce us to reverse. What counsel said was entirely too mild to hurt, even if it bad been not altogether fair in forensic debate, when some latitude must be indulged for tbe undue beat of argument and tbe excited zeal of counsel, and sometimes tbey must give and take, if there is no gross abuse of privilege. S. v. Underwood, 77 N. C., 502; S. v. Bryan, 89 N. C., 531; S. v. Suggs, ibid., 527; Devries v. Phillips, 63 N. C., 53; S. v. Tyson, 133 N. C., 692; Railway v. Wette, 68 Texas, 295.

We. bave- given good heed to tbe able and learned brief and oral argument of tbe defendant’s counsel, Mr. Moore; but after all has been said, and duly considered, we are unable to say that any error in the case has been discovered.

No error.