Blackburn v. Cherokee Lumber Co.

MANNING, J. The exceptions taken by defendant and assigned as errors can be arranged and considered in three groups, to wit: 1. That the defendant was under the duty to furnish and equip its cars with automatic couplers, and its failure to do so was negligence. 2. That intestate was guilty of contributory negligence in voluntarily taking a position of peril, and in failing to use the larger of the two pins in coupling the car to the engine. 3. That having voluntarily undertaken to perform a service not within the scope of his employment, the relation of master and servant was temporarily suspended, and the defendant owed him no duty, except to abstain from willful injury. This Court has ruled against the contentions of the defendant in its exceptions embraced in the first group, as above arranged. Hairston v. Leather Co., 143 N. C., 512; Bird, v. Leather Co., 143 N. C., 283; Hemphill v. Lumber Co., 141 N. C., 487; Sawyer v. R. R., 145 N. C., 24; Stewart v. Lumber Co., 146 N. C., 47; Wright v. R. R., 151 N. C., 529. We have examined the charge of his Honor covering the view contended for by defendant in the exceptions included in the second group, and we find that his Honor charged the jury in \he language approved by this Court in Elmore v. Railway, 132 N. C., 865, and Hairston v. Leather Co., supra, and Coley v. R. R., 129 N. C., 407. We cannot say, as a matter of law, upon the evidence presented in the record, that “the apparent danger was so great that its assumption amounted to reckless indifference to probable consequences,” or that the intestate “acted foolishly and without prudence,” and that his conduct amounted to recklessness. If the defendant had furnished and equipped its train with automatic couplers there would have been, on the *364 night in question, no separation of the train and no accident to the intestate.. “The proximate cause of the injury was the breaking of the defective coupling-pin, and the consequent parting of the cars. The negligence of the injured brakeman, in being in an improper place, if it can be called negligence, was a mere condition of the injury. The breaking of 'the defective pin was the proximate cause of the injury. His being on the cars was not the immediate cause of it in a juridical sense.” Terre Haute and I. R. Co. v. Mansberger, 65 Fed., 196; Phillips v. Railway Co., 64 Wis., 475. If the death of intestate had been caused by being jostled from the running-board, on which his feet were resting, or by being thrown” from his position by ■the ordinary movement of-the train, then the proximate cause might have been, in a “juridical sense,” the perilous position he had assumed; but this view is not presented by the evidence. The separation of the train — -the parting of the cars — would not have occurred if the automatic coupler had been used. It was not furnished, and this failure constituted negligence continuing up to the time of the injury, and bars the defense of contributory negligence, unless the negligent conduct of the injured employee amounted to recklessness. This was a question for the jury; and they have resolved the question, upon the evidence, against the defendant. The third group of exceptions embraces those resting upon the contention that the intestate was doing work without the scope of his employment and beyond the sphere of his assigned duties, and that the intestate became á volunteer as to that work — a bare licensee — and the defendant cannot be compelled to answer in damages for an injury which the intestate “brought on himself by undertaking to do that which he was not directed to do. or required.to do.” This contention is rested upon the doctrine so well stated by Mr. Justice Walker in Patterson v. Lumber C., 145 N. C., 42, and, if applicable, is decisive of this appeal. The witness Fleming, the general manager of the defendant company, being offered as a witness for it, testified: “Blackburn was employed as engineer — was not to do any switching or firing. He was to. have complete charge of 'the train crew. He had power to hire and discharge the trainmen. This was the power he had up to the time he was killed. When Lem Rich went to work, I told him I wanted him to learn all he could about the engine. I did not tell him I wanted him to run the engine or do any switching. I told him I wanted him to learn all he could. Will -Hassell was employed as switchman at the time of Blackburn’s death.” Again this witness said: “I did not tell Blackburn to do any switching or not to do any *365 switcbing. Rich ran the engine ’that nigbt, after Blackburn was killed.” Here, by this evidence, we have a man to whom is given the entire charge of his train crew, with the power to hire and discharge any of his trainmen; yet it is contended he cannot fire his own engine — he cannot, when the switchman is not doing his work satisfactorily, do it himself, without going beyond the sphere of his assigned duties and becoming a volunteer — a bare licensee — doing his master’s work, but with no master to serve, suspending thereby the relation of master and servant. If the intestate had, that night, discharged Hassell, the switchman, we think he could have performed his duties as switchman without absolving his master (the defendant) from liability for injuries caused by its breach of duty. In Rodman v. Mich. Central R. R. Co., 55 Mich., 51, Cooley, G. J., says: “That contingencies may and do arise in which the conductor should take charge of the engine for the time, is undoubted. The necessity may sometimes be as urgent as it is plain, and lives may depend upon it. This might happen from injury to the engineer, or sudden illness, and when, to leave the train where the disability of the engineer occurs, would endanger some other train. But there might be other reasons for the engineer leaving his post, for which the company would not be at fault, and the conductor, with the train in his charge and under obligation to avoid other trains, must act in the emergency as the necessities of the case shall require. His highest and plainest duty, in some circumstances,'will -be to take possession-of the engine and operate it * * * and he being the person responsible for the safety and management of the train, must-be allowed a certain discretion in deciding upon emergencies, and the presumption must favor his action.” To the same effect is Seley v. Southern Pac. Ry. Co., 23 Pac., 151; Terre Haute and I. R. Co. v. Fowler, 154 Ind., 682; 48 L. R. A., 531; Barry v. Hannibal and St. J. R. Co., 98 Mo., 62; 2 Bailey Per. Inj. Relating to Master and Servant, sec. 3524. The intestate being in charge of the train, in full charge of the train, having ample power to discharge and hire his crew, it would seem clear that his authority extended to supervision of the work done by his crew, and, as we have said, if any one of his crew did his work unsatisfactorily or was incompetent, the intestate had authority to discharge him or temporarily to suspend him and assign him other work on the train, and, for the time, perform the work of this removed trainman, without, in legal contemplation, going beyond the scope of his employment. ■He would still be the servant of the defendant. He must be considered, under the evidence, as invested with a certain dis *366 cretion in deciding upon the occasion which makes his interference necessary in the proper management of his train and the proper conduct of the master’s business entrusted to him, “and the presumption must favor his action.” The defendant requested his Honor to charge the jury that if the intestate voluntarily assumed to act as switchman and, while so acting, was injured, the injuries were received by the intestate in doing work outside the sphere of his assigned duties, and hence the defendant would not be liable. None of the defendant’s instructions, however, presented the view, predicated upon the evidence of defendant’s general manager, that we have herein presented as the decisive view, to wit, that intestate was in full charge of the train crew, etc., and we do not think it constitutes reversible error for his Honor to have refused the defendant’s prayers. We are of the opinion that there was no reversible error committed at the trial, and the judgment is affirmed.. No error.