Walker v. Railroad Co.

Douglas, J., after stating the facts. While we are not mechanical experts, avg think that the fact that a cast-iron sand-dryer had the smoke-pipe knocked off, was “squshed *741 clown” and was daubed up with mud, was some evidence of a defective machine from which the jury might have inferred the negligence of the defendant. That the plaintiff's clothing-caught on fire when the only fire anywhere near him was in the sand-dryer, would tend to show that he caught on fire from the sand-dryer. The further fact that he had been working with sand-dryers for three years and never caught fire until this machine became defective, would, with his other testimony, also tend to prove that the defect was the cause'of his being burned. Therefore, the prayers to instruct the jury that there was no evidence tending to prove the negligence of the defendant, or that such negligence was the approximate cause of the injury, were properly denied. The duty of the 'defendant to furnish safe machinery, the failure of which constitutes continuing negligence, is too well settled to require any great degree of argument or authority. Greenlee v. Railroad, 122 N. C., 977, 41 L. R. A., 399, 65 Am. St. Rep., 734; Troxler v. Railroad, 122 N. C., 903; S. C., 124 N. C., 189, 44 L. R. A., 313, 70 Am. St. Rep., 580 ; McLamb v. Railroad, 122 N. C., 862; Coley v. Railroad, 129 N. C., 407, 57 L. R. A., 817. Upon the issue of contributory negligence the Court charged as follows: “The Court charges you, upon the testimony, to answer that issue No.” We cannot approve of the form of such an instruction, and yet as it was correct in legal effect under the testimony in this case we cannot set aside the verdict. What his Honor evidently meant was that there was no evidence tending to prove contributory negligence, and in that we think he was correct. As his charge was in legal effect merely the direction of a negative verdict upon the entire absence of evidence, it comes within the rule laid down in Wittkowsky v. Wasson, 71 N. C., 451, and Spruill v. Ins. Co., 120 N. C., 141, cited with approval in Lewis v. Steamship Co., 132 N. C., at page *742 910. It has been suggested that the question of assumption of risk arose under the issue of contributory negligence and should have been submitted to the jury. This is answered by reference to the act of February 23, 1897 (Private Laws, chapter 56), depriving railroad companies of such a defense. Thomas v. Railroad, 129 N. C., 392; Cogdell v. Railroad, 129 N. C., 398. The judgment of the Court below is affirmed. Affirmed.