10 S.E. 669 | N.C. | 1889
Where a servant rests his claim to damages against his employer upon the ground that he has been injured by defective machinery, furnished by the master to be used in the course of his employment, the burden is cast upon him, as plaintiff, to prove negligence prima facie, or subject himself to judgment of nonsuit. It is a well settled rule that he cannot relieve himself of the onus thus imposed upon him until he offers testimony tending to show:
1. That the appliance or machinery was defective.
2. That the injury was due to such defect as the proximate cause.
3. That the attention of the master had been called to the defect, or that in the exercise of a degree of care commensurate with the character of the machine he ought to have had knowledge of it. Thompson
(501) on Neg., p. 996, sec. 12; ib., p. 984, sec. 11 (2); Gibson v. R. R.,
Some writers who are generally recognized as authority contend that the servant is required to show affirmatively, also, that he did not know of the fault in the machinery to which the injury was due, and that it was not so apparent that he could, with ordinary observation, have discovered it. 3 Hard. R. L. Cases, sec. 385; Woods' Law of M. S., sec. 382; Beach on Con. Neg., sec. 123. The weight of authority, as well as the force of sound reasoning, sustain the rule, however, that it is incumbent on the defendant — if it would avoid liability for injuries caused by machinery furnished to the servant, when its agent knew or ought to have known of its dangerous condition — to aver in the answer and to prove on the trial that the latter knew when he entered the service, or discovered during the term of service and before he was injured, or, by the exercise of ordinary observation or reasonable skill and diligence in his department of service, might have known that the appliance complained of was unsafe. 2 Thomp. on Neg., p. 1008, sec. 15; OnusProbandi, 127, 128; Greenleaf v. R. R.,
While a servant, in contemplation of law, contracts with reference to the danger of injury from fellow-servants in a common employment, and to the peril incident to the use of unsafe appliances, to which his attention is called before contracting, yet, if he first discovers this dangerous condition after accepting employment, and willfully continues to incur the risk incident to the service, such voluntary exposure of his person is held to be contributory negligence on his part, and he is held not to be entitled to recover damages for an injury due to such defects, because of his own carelessness, and not on the ground that he agrees to subject himself to hazards of which he could not have known. Patterson R.
L., sec. 327; Wharton on Negligence, sec. 197; Pleasants v. R. R.,
The second point decided was that if the complaint contained a defective statement of a cause of action, the defendant had averred in his answer, first, that the engine had been repaired and was in good condition; and, second, that if it was unsafe when it exploded, it became so after it was repaired and inspected, "without the knowledge thereof on the part of the defendant," and the defects were cured under the rule as to aider.
In Cowles v. R. R.,
It is not essential that we should consider any of the other errors assigned, but as the case may come before us again it is best to advert to two other exceptions. We think there was no error in refusing to charge, as requested, that there was no evidence that the engine was unsafe or defective, or that the injury was caused by the dangerous condition of the engine. The testimony of the witnesses Hudson, Ferguson, Huske, Jackson, and Sullivan tended to show that the engine was in a dangerous condition; and that of Bard, Bynum, Murray, and Hudson that the injury might have been due to the fact that it was not subject to the control of the engineer. It is not within our province to pass upon the weight of the evidence. We only decided that it was sufficient to require the court to submit the case to the jury. There was error in the instruction as to the burden of proof, for which there must be a new trial.
Error.
Cited: Mason v. R. R.,
(506)