Porter v. Western North Carolina Railroad

Smith, C. J.,

dissenting. As I do not concur with the Court in setting aside the verdict as self-contradictory, but am of opinion that judgment was properly rendered upon it in favor of the defendant, it is necessary for me to state the reasons upon which the dissent is based. Six issues were presented to and passed on by the jury, of which those numbered 2 and 5 are supposed to be in irreconcilable conflict, and to call for a reference to another jury, upon the ground that the intestate’s co-operative negligence, denied in the first, is affirmed in the latter finding. I do not so interpret the case.

The finding upon the first three issues, as explained in the third, presents the case in which one servant is injured, in the present instance loses his life, by the negligence and want of due care of another, fellow-servants of the same master, for the consequences of which the authorities are uniform in holding that the common principal is not liable. Such hazards incident to the same, are voluntarily assumed in entering the service under an implied, involved in the actual contract. Contributory negligence on the part of the injured, is not a material element in the exoneration, for if not present, and the injury proceeds from the sole carelessness of the employé, the result is the same.

To remove these obstacles to a recovery, and to bring home to the defendant its own negligence, the 4th and 5th issues were framed and passed on, from which it appears that the engine-man had before shown his unfitness for the place — indeed a recklessness in conducting his engine, and this was alike known to the deceased and to the company, *77 and yet the former remained in the service, without complaint made to the employing company.

It is well settled that a railroad company, or any other,, employing servants in the different branches of its business, which converge to one end, must provide safe and suitable machinery, and employ competent and fit persons to discharge the various duties required of each for the security of all. This obligation extends to necessary reparations, and to the discharge of employés whose unfitness has been made apparent by their subsequent conduct.

As the employer alone acts in these matters, his duty to those whom he employs, imperatively demands the exercise of proper care in these particulars for the safety of the others,, and not less the protection of his own interests. So too, the servants who detect any defects in the machinery, or incompetency in those with whom they associate in the common undertaking, should communicate the fact to the employer,, that he may provide a remedy. If, with this information, and without making it lcnowm to the employer, any one remains without complaint in the service, it is assumed that he adds the risks from this new source of danger to those which he took upon himself when he entered into the service.

These principles are recognized as governing the relation between the employer and the employed in reference to accidents occasioned by defective machinery, or known incompetent co-employés. “ In this country,” says Mr. Wharton,. “ the exception has been still further extended, and we have gone so far as to hold, that a servant does not, by remaining in his master’s employ, with knowledge of defects in machinery he is obliged to use, assume the risks attendant on the use of such machinery, if he has notified the employer of such defects, or protested against them in such a way as to induce a confidence that they will be remedied. The only ground on which this exception can be justified is, that in *78 the ordinary course of events, the employé, supposing that the employer would right matters, would remain in the employer’s service, and that it would be reasonable to expect •such continuance. But this does not apply to cases where the employé sees that the defect has not been remedied, and yet continues to expose himself to it. In such case, on the principles heretofore announced, the employé’s liability in this form of action ceases.” Law of Negligence, §221.

The doctrine is thus laid down in Wood’s Law of Master and Servant. §379 :

“ The fact that an employé has complained of a defect, and believes, or has reason to believe, that the defect will be remedied, unless a promise to repair is made, does not of itself entitle him to recover for an injury received from such defect. The real question is, whether the plaintiff wasguiltyof negligence in performing the service, after knowledge of the defect — no promise to repair it being given — does not operate to relieve him of the imputation of negligence, but may have directty the opposite effect. It is wholly a question of care or negligence, and if the servant knew, or ought to have known the danger, and a person of ordinary prudence would 'have regarded it as dangerous to remain, he cannot recover, even though he has complained of the defect.”

The responsibility for using defective machinery and unfit implements, and for employing an incompetent servant, ■or retaining him after such incompetency has been shown, is substantially the same.

Our own rulings on this subject are in the same line, and the controlling principle is thus stated by ByxüM, J.: “ If the servant remains in the master’s employ, with knowledge of ■defects in machinery he is obliged to deal with in the course of his regular employment, he assumes the risks attendant upon the use of the machinery, unless he has notified the ■employer of the defects, so that they may be remedied in a reasonable time. But if he sees that the defects have not *79 been remedied, yet continues to expose himself to the danger, the employer’s liability ceases. Crutchfielcl v. R. & D. R. R. Co., 78 N. C., 302.

So it was subsequenty declared, that “ if the'servant knows of defects in the machinery, and remains in the service, he ■cannot recover for injuries caused by such defects, unless he has informed his superior, and the latter fails to remove them.” Johnson v. Railroad, 81 N. C., 458 .

The proposition is stated with some modification by Ruf-fin, J., thus: “In entering the service of the defendant, the plaintiff might be, and is, presumed to understand and take upon himself every risk naturally pertaining to such service, and amongst others, that which may proceed from the possible carelessness of such fellow-servants as he must know from the very nature of the employment, he may be required to associate with in the performance of his duties. But no such presumption is or should be raised, of his willingness to assume the risk growing out of the possible negligence of one, who while a servant to their common master, stands to himself in the light of a superior, whose commands and directions he is bound to obey.”

The plaintiff in this case, was a workman and under the direction and order of the conductor, who was also engineer of the train, and sustained the injury when obeying an order to go upon a certain car and apply the brake, by the bumping of the cars. Cowles v. Railroad, 84 N. C., 311 .

The plaintiff’s intestate was not employed on the running train and controlled by the engineer, but was in a distinct and separate service, so that the qualification of the general rule has no application to the present case.

It is true the company had knowledge, or by inquiry might have obtained it, of the inefficiency and incapacity of the engineer, so that it was unnecessary that the deceased should give the information. It is not for this purpose alone that he should have made complaint, but to show his un *80 willingness to be exposed to the new danger from the officer’s reckless conduct, and that it may be removed. The failure to make complaint, and continuance in the service,, after as before knowing of the unfitness, is an acquiescence in his retention, and a tacit assumption of the new risk, as of those personally assumed, incidental to the employment. As the ernployé, though unfit in some respects, may possess other qualifications for the place, rendering his retention, upon the whole, important to the principal, as also to his fellow-employés, the company, by keeping him, and the other-servants in their acquiescence in the action of the company, assent to the risks to property and to person, and thus the parties stand upon an unchanged footing in respect to possible accidents from this cause.

In a recent work, this enunciation of the rule, with the reasons for it, is made: “ If the servant, when the defect or danger is brought to his knowledge — -when he discovers that the machinery, buildings, premises, tools or anjT other instru-mentalities of his labor, are unsafe or unfit, or that & fellow-servant is careless or incompetent — continues in the employment without protest or complaint, he is deemed to assume the risks of such danger, and to waive any claim upon his master for damages in case of injury." Beach Cont. Neg., §140.

In support of the proposition, a large array of cases decided in this country and in England is given in the foot note, and among them the case of Cowles v. Railroad, supra.

“ Failure to speak promptly,” the author proceeds to say,, “is such contributory negligence as will bar a recovery from the master, in case he is injured by the defect in the machinery, or the unfitness of the servant. * * * But if,, when the master is notified of the defect in the machinery, or of the incompetence in the servant, he promises to remedy it within a reasonable time,” (or, we may add, gives reasons for the servant so to infer,) “ the servant will not be *81 presumed to have consented to it, or to have waived his rights bj1, remaining for such reasonable time in the service.”

Now, the facts are, as found by the jury, that the intestate was aware, and as set out in the case on appeal, communicated to his wife, the fact of the reckless character of the engineer, and that his only apprehension of danger when in the tunnel, was from him. With this information he acquiesces in the situation, and continues in his employment until he loses his life.

The verdict is, that the intestate did not by his own negligence contribute to or directly bring about the disaster to himself, and this is not inconsistent with the further finding, that he remained in the company’s service, with full knowledge of the engineer’s unfitness, and thus waived any claim for damages resulting from such unfitness. Sometimes, as is said in the opinion, this conduct on the part of the servant, continuing in the service after such discovery, is designated as contributory negligence, though he may have exercised every possible care and attention to his own safety upon the particular occasion; but it seems to me the true ground upon which to place the exemption from liability of the employer, is that of the employe’s voluntary exposure of himself to this new source of danger, and his assumption of the risks incident to it.

In a remote degree, negligence may be imputed to the servant in not quitting the service when he knows of the retention of an incompetent fellow-servant or associate, but it is not easy to see how this can be deemed contributory to an accident brought about by no ageimy of his own, and wholly the fault of another. Such is the sense in which the jury must be understood in finding that there was no contributory negligence on the part of the intestate.

I think, therefore, the judgment ought to be affirmed.

Error. New trial.,