Lane v. North Carolina Railroad

MANNING, J. But one exception is presented in the record — • the refusal of his Honor to give, at the request of the defendant, the following special instruction: “Upon all the evidence, if believed, the plaintiff was guilty of contributory negligence as a matter of law, and the jury will answer the second issue Tes.’ ” In determining the correctness of his Honor’s ruling upon this instruction, we must consider the evidence in that view most favorable to the plaintiff, for if his Honor had given the requested instruction, it would have been equivalent to a nonsuit of the plaintiff. It must be kept in mind that the admitted duties of the plaintiff were to inspect the freight cars grouped into a train, to discover defects that might render their transportation unsafe, and to repair such defects when discovered, or to have the defective car taken from the train of cars. The defendant had, as appears from the evidence, wisely adopted a system of double inspection of freight cars coming to its yards at Spencer, one upon their arrival and the second after they had been grouped into a train for an outbound trip. It was the duty of the plaintiff to make this last inspection. Experience, it seems, had demonstrated to the defendant that in shifting cars on its yards from track to track and making up an outgoing train, some injury might be done to the cars that would interfere with the *95 safe movement of tbe train, and tbe second inspection was enforced. Tbe plaintiff being assigned to tbis duty, be was equipped with tbe necessary appliances to perform it; boxes containing knuckle-pins, ' chains, hasps, staples, nails, grab-irons, hammers, shoes, etc., were placed at convenient points on tbe yards for tbe use of the inspector and repairer. Tbe plaintiff was also provided with a lantern, specially made for tbe use of inspectors in their night work. Tbe plaintiff testified that “When they (tbe freight cars)' came to me, I would look over tbe train, inspect it to see if tbe doors were shut or anything broken during tbe shifting of tbe train”; again, in answer to a question, be said that be was what is called tbe safety-appliance man. Tbe particular manner in which plaintiff was injured is stated in bis complaint and testified to by him; it further appears in tbe evidence that tbe doors to tbe freight cars are sliding doors, and “slide or roll on a track at tbe top of tbe door and along tbe side of tbe car by means of supports, with rollers.” Tbis track at tbe top primarily supports tbe weight of tbe door, which varies from 150 to 250 pounds; but it appears and is alleged by tbe plaintiff that a secondary support for these doors was provided in tbe shape of two door-guides or “shoes” attached to tbe side, of tbe cars at tbe bottom of the doors. While it appears from tbe evidence that tbe primary purpose of these door-guides or “shoes” was to prevent tbe doors from swinging out at tbe bottom, it also clearly appears from tbe evidence of plaintiff’s witness that their secondary purpose was to support tbe doors in case anything happened to tbe primary support, and that these “shoes” were efficient for tbis secondary purpose. Tbe presence or absence of these “shoes” was easily detected at a glance because of their size and placing, while tbe condition of the top slide or track was not so easily discovered by tbe plaintiff. Tbe door of tbis particular car at which plaintiff was injured was partly open, and it was bis duty to close it and to discover and supply any missing appliance or defect in it. It was charged for negligence against tbe defendant that it did not specifically instruct tbe plaintiff as to tbe safe and proper method of shutting these car doors; but tbe closing of a door is *96 such, a simple act that we are unable to say that a grown man of experience in that work should be specifically instructed as to how to do it, any more than it requires a book of instructions or particular directions to be given as to the manner of using a hammer to drive a nail. The plaintiff’s evidence showed that the doors were shut by pushing or pulling them shut, and there was no regular or prescribed way — either way was simple. One of the shoes at the bottom of the car door was off, and when plaintiff undertook to pull the door shut, the hinge or roller at the opposite top corner broke or came loose, and the door swung diagonally down -and caught plaintiff’s arm against the jamb of the door or doorpost. If the missing “shoe” had been replaced by plaintiff before his attempt to close the door, the injury could not have occurred. Plaintiff admits that if he had looked, he could readily have seen that the “shoe” was missing. Mr. Thompson, in his Commentary on Negligence, sec. 4617, states it as an accepted principle: “From the foregoing, it may easily be concluded that an employee assumes the risk of injury from defects in premises, machinery, mechanical contrivances or appliances which he is employed to repair, or which it is his duty in the course of his employment to repair.” This is quoted with approval and applied by this Court in the recent case of White v. Power Co., 151 N. C., 356. The application of this principle determines this case, and we think, against the plaintiff. It will further be observed that the injury to the plaintiff was not caused by the intervening act of any other servant or in any way aided or participated therein by such other servant; it was the plaintiff’s own and sole act. This language of Chief Justice Bleckley in Spinning Co. v. Achord, 84 Ga., 14, states most clearly the controlling principle (this is also quoted in White v. Power Co., supra): “While it is the duty of a master to furnish his servant safe machinery for use, he is under no duty to furnish his machinist safe machinery to be repaired, or to keep it safe whilst repairs are in progress. Precisely because it is unsafe for use, repairs are often necessary. The physician might as well insist on having a well patient to be treated and cured as the machinist to have sound and safe machinery to be *97 repaired.” Tbe important part of plaintiff’s dirties was to bunt out and discover defects in tbe car tbat might interfere witb its safe movement, and to repair sucb as be ought to discover. In our opinion, bis Honor should have given tbe instruction prayed,' and in failing to do so there was error, for which a new trial is directed. New trial.