Gaddy v. North Carolina Railroad

AlleN, J. Accepting the plaintiff’s evidence as true, he was employed in interstate commerce at the time of his injury (see note to R. R. v. Behrens, 233 U. S., 473, 33 Anno. Cases, 165; Sanders v. R. R., 167 N. C., 379; Rich v. R. R., 166 Mo. App., 379), and the action must therefore be disposed of under the Federal statute, which is exclusive and supersedes the right of action under the State law, and which, unlike the statute in this State, recognizes the assumption of risk as a defense. Renn v. R. R., 170 N. C., 128, affirmed 241 U. S., 290. The doctrine of assumption of risk, first recognized in the courts about 1837, when Priestly v. Fowler, 3 M. & W., 1, was decided in England, and Murray v. R. R., 1 McMullan (S. C.), 385, and Farwell v. R. R., [518] 4 Met. (Mass.), 49, in tbis country, is upon the idea that the employee knows and appreciates the dangers of his employment and assumes the risk of these dangers as a part of the contract of service, being paid for his risk in the increased wage, and also upon the ground of public policy, it being assumed that the employee will be more careful if he knows that he will not receive compensation for injuries received in the course of his employment. Many of the courts, regarding the reasons upon which the doctrine is based as a fiction adopted to throw upon the employee all the hazards of the employment, have been reluctant to give it effect and have frequently taken hold upon seemingly immaterial matters to avoid its results. Consequently there is great diversity and conflict in judicial opinion as to the correct application of the doctrine, which we will not attempt to examine, as this action must be tried under the Federal law, and we are only concerned with what we conceive to be the doctrine of the Federal courts as announced by the Supreme Court of the United States. That Court enforces the rule that it is the duty of the employer to provide reasonably safe and adequate machinery and appliances' for the use of the employee and to keep and maintain them in such condition, and that a failure to perform this duty is negligence. Gardner v. R. R., 150 U. S., 349. It also holds that the employee assumes the ordinary risks incident to his employment, and that if he continues to work without objection, having knowledge of a defect and an apprehension of danger, and is injured, that this is one of the ordinary risks of his employment. R. R. v. McDade, 135 U. S., 570. In Butler v. Frazee, 211 U. S., 459, it is held that “One understanding the condition of machinery and dangers arising therefrom, or who is capable of doing so, and voluntarily, in the course of employment, exposes himself thereto assumed the risk thereof, and if injury results cannot recover against the employer.” In R. R. v. Shalstrom, 195 Fed., 729, it is said: “Although the risk of the master’s negligence and of its effect unknown to the servant is not one of the ordinary risks of the employment which he assumes, yet if the negligence of the master or its effect is known and appreciated by the servant, or is obvious, or ‘so patent as to be readily observed by him by the reasonable use of his senses, having in view his age, intelligence, and experience,’ and he enters and continues in the employment without objection, he elects to assume the risk of it, and he cannot recover for the damages it causes.” In R. R. v. Archbald, 170 U. S., 671, White, C. J., says: “The elementary rule is that it is the duty of the employer to furnish appliances free from defects discoverable by the exercise of ordinary care, and that the employee has a right to rely upon this duty being performed; and [519] that while in entering tbe employment be assumes tbe ordinary risks incident to tbe business, be does not assume tbe risk arising from tbe neglect of tbe employer to perform tbe positive duty owing to tbe employee with respect to appliances furnished. An exception to this general rule is well established, which bolds that where an employee receives for use a defective appliance and with knowledge of tbe defect continues to use it without notice to tbe employer, be cannot recover for an injury resulting from tbe defective appliance thus voluntarily and negligently used.” Running through tbe cases is tbe principle that if tbe employee has knowledge of tbe conditions and tbe dangers, or if these are obvious, and be continues in tbe employment without objection, be is held to have assumed tbe risk, although be may be injured by reason of some neglect of tbe employer, and in its application it was held in Seley v. R. R., 152 U. S., 145, that a brakeman, familiar with a certain freight yard, whose foot was caught in an unblocked frog while making a coupling assumed tbe risk. Tbe Court, after referring to several decided cases, says: “Tbe evidence showed that Seley bad been in tbe employ of tbe defendant for several years as brakeman and as conductor of freight trains; that bis duty brought him frequently into tbe yard in question to make up bis trains; that be necessarily knew of tbe form of tbe frog there in use; and it is not shown that be ever complained to bis employers of tbe character of frogs used by them. He must, therefore, be assumed to have entered and continued in tbe employ of the defendant with full knowledge! of tbe dangers asserted to arise out of tbe use of unblocked frogs. "Appel v. R. R., 111 N. Y., 550, 19 M. E., 93, was a case where tbe plaintiff’s intestate was a brakeman employed in coupling cars in tbe yards of tbe defendant at Buffalo, N. Y., and while so engaged bis foot was caught in an unblocked frog, and be was run over and killed; and tbe Court of Appeals held that ‘in accepting and continuing in tbe employment, tbe deceased assumed tbe hazard of all known and obvious dangers, and that be was chargeable with notice of tbe difficulty in removing the foot when caught in tbe frog and of tbe danger to be apprehended therefrom, and therefore that a cause of action was not made out, and a refusal to nonsuit was error.’ ” Tbe facts in tbe case from New York and in tbe Beley case are more favorable to tbe employee than are tbe facts in tbe case before us, as in those cases there was evidence of a defect in tbe frog in which tbe foot of tbe employee was caught, while here there is neither allegation nor evidence that tbe guard rail which caught tbe foot of tbe plaintiff was defective. [520] Tbe plaintiff is a man of eleven years experience; be was familiar witb tbe yards where be was working; be knew of tbe existence and location of tbe guard rail; tbat tbe cars bad been kicked towards bim; tbat they were coming at tbe rate of 15 miles an hour, and every condition wbicb bad any bearing upon bis injury was obvious and known to bim, and under tbe authorities cited we must bold tbat be assumed tbe risk of bis injury. Tbe Beley case, witb its approval of tbe ease from New York, is also authority for tbe position tbat it is proper to enter a judgment of non-suit when tbe evidence for tbe plaintiff makes out clearly tbe defense of assumption of risk. His Honor was in error in refusing to enter tbe judgment of nonsuit upon tbe defendant’s motion, and our decision upon this question makes it unnecessary to consider tbe other exceptions. • In Ware v. R. R., at this term, tbe plaintiff was not employed in interstate commerce, and tbe action was tried under tbe State statute, wbicb does not recognize assumption of risk as a defense. Reversed.