When this case was brought before us by the former appeal (111 N. C., 482) there was evidence that the conductor in charge of the train, when the defendant was injured between two of the cars composing it, had told the defendant that “whenever he could not couple the cars with a stick, to go in and couple them with his hands,” and that the latter, finding it impossible to couple otherwise, had exposed himself to danger in obedience to that order. In that aspect of the testimony the question arose whether a conductor in charge of a separate train was a vice-principal clothed with authority of the corporation to waive its own rule and thereby, in advance, condone the negligent conduct of the defendant, or prevent the company from pleading it as his voluntary act. “The question
It was admitted on the trial below, however, that the conductor in charge when the defendant was injured was not the same person who had on a former occasion given the general order mentioned for the government of the brakeman in coupling cars. We still adhere to the doctrine that a'brakeman is not culpable for exposing himself, in obedience to the orders of the conductor in charge of the train, to peril to which his voluntary exposure of himself would constitute contributory negligence. Our ruling was founded both upon the principle that the conductor, as middle-man, had on behalf of the company waived its express regulation, and upon the idea that the known relation between a conductor and a brakeman, running on the same train as his subordinate, was such as to subject him to a well-grounded fear of dismissal should he hesitate to obey such an order, and thereby relieve him of legal culpability for conduct which, but for the fact of his acting under the fear of the consequences of disobedience, would constitute negligence. But we did not intimate or intend to intimate that a brakeman would be warranted in assuming that another conductor, under whom he had served for several months without receiving any order modifying the written rule, would discharge him for failure to couple with
The case now presented for our consideration is therefore materially different from that upon which we passed in the former appeal, especially in the fact that the plaintiff voluntarily subjected himself to danger not necessarily incident to the duty which he had contracted to perform, and when, but for his needless exposure of himself, the injury would not have been received. Idis own carelessness being by that test the -proximate cause of the injury, we have here the converse of the general legal proposition to which we gave our sanction in Deans v. Railroad, 107 N. C., 686. In the one case the defendant company is relieved from liability, because, but for the negligence of the plaintiff supervening upon its own previous want of care, no injury would have been inflicted; while in the other the plaintiff’s previous culpability would not have caused the injury if the defendant in turn had not been guilty of subsequent carelessness. There is no better test of the accuracy of mathematical or the soundness of metaphysical reasoning than by considering the reasonableness of the converse of the proposition submitted as a rule.
While we do not consider ourselves under any obligation to change our rulings, in order to conform to those of any Court in the country, except in so far as the Supreme Court of the United States has. power of review by virtue of the Constitution, it may not be amiss to say that upon a careful examination of' the late authority to which counsel called our attention (Railroad v. Bough, 149 U. S., 368)
For the reasons given we think that there was no error in the intimation of the trial Judge that the plaintiff was not entitled in any view of the evidence to recover.
Eo Error.