Elmore v. Seaboard Air Line Railroad

CLARK, J.

This ease is simply a repetition of Greenlee v. Railroad, 122 N. C., 977, 41 L. R. A., 399; Troxler v. Railroad Co., 124 N. C., 191, 44 L. R. A., 313, 70 Am. St. Rep., 580, and tbe several cases affirming tbe doctrine therein laid down. It was, in evidence tbat tbe defendant’s cars were equipped with automatic couplers, but where tbe plaintiff was injured in making a coupling, there was evidence tbat tbe automatic coupler bad been out of repair five months or' more *507to tbe knowledge of defendant. Tbe plaintiff testified that be was ordered to' make a coupling and was injured ini so doing. He testified: “If tbe coupler bad been in perfect condition, I would bave been able to couple without putting my foot between there” (the cars) ; “if tbe link had been in perfect condition I would not have had to kick it,” and much other evidence to the same purport, that he used' his foot instead of his hand because the coupler, being out of order, and no stick being furished him, he could only make the coupling which the conductor ordered him to make by using his foot or band, and he had more power in his foot; that he bad seen his conductor use his foot to couple in that way and the conductor had seen him and others do so. The Judge charged the jury substantially that if the coupler was .in repair the defendant was not guilty of negligence, or if the lack of repair of the coupler did not necessitate the plaintiff going between the cars to couple, there was no negligence on tbe part of defendant, but that if the coupler was out of condition for such length of time that defendant could have bad it repaired, but failed to do so, and that plaintiff would not have been injured but for tbe condition of the couplers, and that in the condition in which the coupler was that it was necessary, in order to couple, to use the hand or foot, and that the plaintiff was under the orders of the conductor, who directed him to couple the cars, and in so doing plaintiff was injured, and if the jury further find that he would not bave been injured but for tbe condition of tbe couplers, then tbe jury should find tbe first issue “Yes.”

On tbe second issue tbe Court instructed tbe jury that if the coupler was out of repair and had been for such length of time that the defendant knew, or should have known it, and with the exercise of reasonable diligence could have had it repaired, and the plaintiff coupled the cars under the direction of the conductor, and that it was plaintiff’s duty to obey the *508conductor, and be would not bave been injured but for tbe condition of tbe couplers, to answer tbe second issue (contributory negligence) “No.”

Tbe charge was much fuller and put every phase of tbe evidence wbicb was favorable to- tbe defendant, but tbe above 'presents tbe real point involyed in tbe numerous exceptions. This proposition is settled in tbe cases above cited, to-wit, it is tbe duty of tbe defendant tot use automatic couplers, and if, on failure so to do, injury occurs to an employee, wbicb would not bave happened if there bad been a coupler, this is a continuing negligence on tbe part of tbe employer, which cuts off tbe defense of contributory negligence, such failure being tbe cama causans. If tbe automatic coupler was out of repair for a length of time reasonably sufficient to bave it repaired and this was not done, it was tbe same thing as tbe failure to bave tbe automatic coupler on that car. Without reiterating tbe reasoning wbicb has induced tbe Court to mate and abide by this ruling, and applying it to tbe case in band, tbe judgment below must be

Affirmed.

Douglas,. J., concurs in result.,