Moore v. . Rawls

BrogdeN, J. Is it the duty of logging roads or tramroads to equip log ears and engines with automatic couplers? The defendant, Rawls, was an independent contractor, and as such employed the plaintiff as a laborer. Under the contract existing between the independent contractor and the defendant, Goldsboro Lumber Company, it was the duty of the contractor to cut and load logs on the cars of his codefendant. There is no evidence tending to show that the defendant, Goldsboro Lumber Company, had charge or supervision of the employees of the contractor or of the method of performing the work. It did, however, furnish the skidding machine. It was therefore .the duty of the Lumber Company to furnish to its contractor machinery, implements and appliances safe and suitable for the work to be performed and to keep such appliances in safe condition so far as this could *128 be done by tbe exercise o£ proper care and supervision. Tbe Lumber Company owed tbis duty to tbe plaintiff even tbougb be was an employee of tbe contractor because failure to furnish sucb appliances as tbe law contemplates resulted in making tbe contractor and bis employees tbe employees’ of tbe Lumber Company in tbis particular. Paderick v. Lumber Co., 190 N. C., 308, 130 S. E., 29. Tbe plaintiff relies upon tbe Paderich case, but it must be observed tbat tbis case involved a defective loading macbine. Tbe ease at bar, on tbe other band, discloses no defect whatever in tbe skidder, but a,t most a negligent method of operating it in tbat it was not jacked up high enough. Tbis involved the operation of tbe skidder only, and tbe Lumber Company bad nothing to do with sucb operation. Tbe evidence disclosed no defect in tbe cars or couplings, but tbe plaintiff takes tbe position tbat it was tbe duty of tbe Lumber Company to furnish cars with automatic couplers and tbat a failure to do so was equivalent to furnishing him defective appliances. In tbis State logging roads have been required: (1) to keep its right of way clear of trash and other inflammable substances, Craft v. Timber Co., 132 N. C., 151, 43 S. E., 597; (2) to equip engines with spark arresters, Cheek v. Lumber Co., 134 N. C., 225, 46 S. E., 488, 47 S. E., 400; (3) to keep a proper lookout, Sawyer v. R. R., 145 N. C., 24, 59 S. E., 116; (4) to keep its right of way and roadbed in proper condition and repair, Hemphill v. Lamber Co., 141 N. C., 487, 54 S. E., 420; Buchanan v. Lumber Co., 168 N. C., 40, 84 S. E., 50; (5) to provide in tbe exercise of due care reasonably safe couplers. Liles v. Lumber Co., 142 N. C., 39, 54 S. E., 795. But it has never been held in tbis State tbat it is tbe duty of logging roads to equip their engines and cars with automatic couplers. C. S., 3465, has been held to apply to logging roads, and under tbe construction of tbis.statute assumption of risk is not available. Williams v. Mfg. Co., 175 N. C., 226, 95 S. E., 366; Bissell v. Lumber Co., 152 N. C., 123, 67 S. E., 259. Tbe case of Williams v. Mfg. Co., 175 N. C., 226, 95 S. E., 366, held tbat it was error for tbe trial judge to apply tbe principle of comparative negligence to logging roads. However, since tbat decision C. S., 3470, has been enacted by tbe Legislature. In tbe case of Hines v. Lumber Co., 174 N. C., 294, 93 S. E., 833, tbe Court, distinguishing tbe Greenlee and Troxler cases, 122 N. C., 977, 30 S. E., 115; 124 N. C., 189, 32 S. E., 550, said: “Here, as in other ordinary cases, tbe defendant is required to supply for its employees “implements and appliances which are known, approved and in general use,” and there is testimony on tbe part of plaintiff tending to establish negligent default in tbis respect; but neither tbe car nor tbe defects suggested present sucb exceptional or extraordinary conditions as to withdraw tbe case from tbe usual and recognized principles in actions of tbis char- *129 aeter and which make contributory negligence on the part of the employee a valid defense.” The decision, however, in the Hines case was rendered prior to the adoption of O. S., 3470. The later decisions hold that contributory negligence is no longer a bar to injuries received in the operation of a logging road, but such negligence mitigates damages. In other words, comparative negligence is now, under the law, applicable to logging roads. McKinish v. Lumber Co., 191 N. C., 836, 133 S. E., 163; Stewart v. Lumber Co., 193 N. C., 138, 136 S. E., 385; Lilley v. Cooperage Co., 194 N. C., 250, 139 S. E., 369. It is clear, therefore, that in the development of the law with respect to the liability of logging roads, this Court has not yet taken the position that logging roads should be required to install and maintain automatic couplers. There is no evidence upon the present record tending to show that the link and the pin coupling used by the defendant was not an approved appliance and in general use'. The plaintiff was not an employee of the defendant Lumber Company and was not directed by any of its-employees to couple the cars. Neither is there evidence of any defect in the cars or coupling. There was no evidence of any unusual or negligent movement of the train or that the employees of the Lumber Company had notice that the plaintiff was undertaking to couple the cars. "■ Under these circumstances we are of the opinion that the defendant Lumber Company was not guilty of negligence, and the motion for non-suit as to it should have been allowed. Error.