Opinion
(Filed 13 June, 1902.)
1. Negligence — Master and Servant — Railroads.
Where an automatic coupler is out of repair for a length of time reasonably sufficient to have it repaired, and an employee is injured in coupling the car, the railroad is liable, whether such employee was negligent in the manner of making the coupling or not.
2. Contributory Negligence — Negligence — Continuing Negligence — Master and Servant.
Where the negligence of the railroad is a continuing negligence there can be no contributory negligence which will discharge its liability to an employee for injuries caused thereby.
ACTION by H. J. Elmore against the Seaboard Air Line Railway Company, heard by Allen, J., and a jury, at January Term, 1902, of WAYNE. From a judgment for the plaintiff, the defendant appealed.
Allen Dortch and I. F. Dortch for plaintiff.
Day Bell, J. B. Batchelor and T. B. Womack for defendant.
MONTGOMERY and COOK, JJ., dissenting.
This case is simply a repetition of Greenlee v. R. R., 122 N.C. 977, 41 L.R.A., 399; Troxler v. R. R., 124 N.C. 191, 44 L.R.A., 313, 70 Am. St., 580, and the several cases affirming the doctrine therein laid down. It was in evidence that the defendant's cars were equipped with automatic couplers, but where the plaintiff was injured in making a coupling there was evidence that the automatic coupler had been out of repair five months or more, to the (507) knowledge of defendant. The plaintiff testified that he was ordered to make a coupling and was injured in so doing. He testified: "If the coupler had been in perfect condition I would have been able to couple without putting my foot between there" (the cars); "if the 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 furnished him, he could only make the coupling which the conductor ordered him to make by using his foot or hand, and he had more power in his foot; that he had 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 the part of defendant, but that if the coupler was out of condition for such length of time that defendant could have had it repaired, but failed to do so, and that plaintiff would not have been injured but for the 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 have been injured but for the condition of the couplers, then the jury should find the first issue "Yes."
On the second issue the court instructed the 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 conductor, and he would not have been injured (508) but for the condition of the couplers, to answer the second issue (contributory negligence) "No."
The charge was much fuller and put every phase of the evidence which was favorable to the defendant, but the above presents the real point involved in the numerous exceptions. This proposition is settled in the cases above cited, to wit, it is the duty of the defendant to use automatic couplers, and if, on failure so to do, injury occurs to an employee, which would not have happened if there had been a coupler, this is a continuing negligence on the part of the employer, which cuts off the defense of contributory negligence, such failure being the causa causans. If the automatic coupler was out of repair for a length of time reasonably sufficient to have it repaired, and this was not done, it was the same thing as the failure to have the automatic coupler on that car. Without reiterating the reasoning which has induced the Court to make and abide by this ruling, and applying it to the case in hand, the judgment below must be
Affirmed.