*1 Masox Railroad. v. killed, want of he is struck and
for this apprehend be deemed recklessness. The same holds true as to man track, down and a drunken helpless a lookout he would be seen and his death proper keeping avoided. injury & MASON RICHMOND DANVILLE JAMES C. RAILROAD
COMPANY. Damages Negligence—Contributory Action — for Negligence— Proximate Cause Injury Coupling —Brakeman Cars— Disobedience Waiver—Vice-principal. Rules — plaintiff disregarded brakeman a 1. Where rules of railroad com forbidding go them, pany coupling brakemen to between the cars agreed observe, injured, which he had the fact that the train, previously go him conductor who had seen between ‘1 ’’ them, him hurry up told cars go not amount to order to between the cars so did relieve imputation contributory negligence from the so doing. culpable exposing a brakeman for 2. While himself to disregard of the rules of the but in obedience train, yet of the conductor that a orders the fact formerly under whom brakeman him served told they coupled the cars when could not otherwise be doing justify him in so several months later when under did another conductor who control of no such order. concurrently negligent and defendant were both Where 3. proximate injury of the former was the damages plaintiff the latter cannot recover the same. is, company’s aof railroad as to 4. A conductor those vice-principal acting subject to his orders on the same 0.] Hasox x\.ctioN for damages,
Civil brought by *2 the defendant for against suffered personal injury on the 14, 1889, C., of December at morning Durham, N. tried Broiun, J., and a Term, at 1893, of jury, Augut Guil- Court. Superior ford was a brakeman on a “mixed train” run- and
ningbetween Greensboro on December Raleigh 14,1889, which C. B. Guthrie was the Capt. conductor. Plaintiff had served under Guthrie for three months Captain previ- ous and had been on a formerly train of which working; J. E. Dick was conductor. Capt. While under Dick serving signed printed follows: agreement “I understand that fully the rules Richmond & Danville Railroad Company positively brakemen prohibit from or coupling cars with a stick; and uncoupling except that brakemen or others must not between the cars under circumstances for any purpose coupling etc., or for uncoupling, adjusting pins, engine attached to such train; cars or and in consideration of said being employed bjr to be hereby agree rule, said and waive bound'by all or of’said any liability to me for results of disobedience or infrac tion thereof. I have read the above understand it. fully 'J. C. MasoN.”
“(Signed) Part of the inis his own to-writ, “I agreement writing, have read the above and understand it.” This fully paper is dated 2, February
On the trial the was read agreement jury put in evidence.
Plaintiff that at testified the time he signed agree- ment, 1889, 2, and afterwards Dick February told Captain him, “When cannot with a stick you couple couple hand.” your
Mason of, testified: Concerning injury complained , 14, “That 1889, on December he was the employment of the Richmond & Danville as a Railroad Company brakeman and on mixed baggage-master, running, between Greensboro That he arrived at Dur- ptaloigh. December, 1889, ham on 14th morning [the o’clock, conductor, and it was still dark at that time. The Guthrie, Mr. C. B. ordered the witness to get freight side-track, cars from which he did and threw the cars out witness, main line. Guthrie told “Hurry up cars; we are behind and must from here.” couple away get cars, Pie back had a went lie stick which about four feet from the side long, picked up *3 track. The railroad did not furnish the sticks, but brakemen them from the saw-mills and got other the line of the road. The witness had places along a lantern which he used It was making couplings. dark and the lantern was the lie had. lie quite only light drawhead, he pin put thought easily but was crooked and did not down. couple, pin slip The witness then in between the cars so as to stepped push down with his hands. thus While he pin engaged the cars heard attached to the back. Wit- engine coming if ness looked to see there were attached to any bumpers and the cars saw none. commenced back to He going get out, but before he out the comers of the cars came got and him.' breast, crushed He was in the injured 'together ribs and breast-bones. He knew lungs, hurting nothing hours. hurt for several He was about o’clock The ends of the cars struck him and the corners morning. him between them. caught had cars with his
“Witness hands before. lie coupled had thinks Guthrie seen him do-it.” N. r.
Mason Plaintiff’s counsel in Court response inquiry did stated not claim that Guthrie ever orders to the plaintiff use hand Conductor coupling. Dick left the service of the little time after witness was hurt. Witness had not served under Dick for some months before witness was hurt.' witness, evidence of the and
Upon the state- ment of the counsel that did not claim that Conductor Guthrie ordered him use his hand in coupling cars on 14, 1889, December had that Conductor Guthrie ever time told him to use his hand in coupling when he could not stick, with a Court adjust pin intimated the that the opinion could recover. In deference to the was withdrawn, and the opinion juror nonsuit, took excepted ruling intimation of the Court appealed.
Mr. J. A. Barringer, plaintiff.
Messrs.D. Busbee, Schenck Busbee& for defendant.
Avery, J.: When this case was us brought C., former there (111 was evidence that the appeal 482) when the defendant was it, two of the cars injured told the composing defendant that “whenever he could not *4 stick, awith in hands,” to them with his couple latter, and that the it to other finding impossible couple wise, had himself to in to that obedience exposed In order. that of the the aspect arose testimony question a whether in of a conductor train was a charge separate clothed with of the vice-principal authority to corporation its advance, waive own rule and condone the thereby, defendant, conduct of or the the negligent prevent from it as his act. “The voluntary pleading question IN COURT. THE SUPREME i—! T—1
Mason “in such cases is whether the all involved” the Court) (said the orders of supe- feels constrained to obey subordinate with will be attended obedience rior, apparently though his authority. than run the risk of' defying rather peril, * * * the obey That a brakeman feels impelled can deny; person orders of conductor observant of a so com- can notice relation and since we take judicial a voluntary prefer- mon and well understood would an were to adhere to arbitrary ence of fiction to fact that we know does founded reason rule upon supposed not exist.” however, below, was admitted on trial
It was was when the defendant injured a former occasion not the same who on person given mentioned for government order general cars. still adhere doc- brakeman We himself, that a'brakeman is not trine culpable exposing the orders the conductor obedience of him- which his voluntary peril exposure Our self constitute contributory negligence. ruling would conductor, as both was founded principle middle-man, waived its had on behalf of idea that the known rela- express regulation, brakeman, tion between conductor running subordinate, such as him to subject same hesitate fear of dismissal should he a well-grounded him order, such relieve thereby legal culpa- obey which, but for the fact of his under for conduct acting bility disobedience, would consti- fear consequences But we did not intimate intend inti- tute negligence. would be warranted mate that a brakeman assuming conductor, under he had another whom served sev- order eral months without modifying receiving rule, him for written failure to discharge *5 TERM, 1894. 723
Mason v. Kailkoad. his hands a stick would not answer the purpose. And not we do think that the command of to Guthrie with the of “hurry up,” coupled testimony that he had Guthrie' seen him thought with his time, hands is tantamount com- express mand, such as was Dick, Conductor who had given by pre- been viously superior.
The case now for our consideration is presented therefore different from that which we materially upon passed former in the fact appeal, especially vol- himself untarily inci- subjected necessarily dent which had duty contracted perform, when, but for needless himself, of exposure the injury been not have received. Idis own carelessness being that test the of the we have -proximate injury, here the of converse to which general legal proposition Railroad, our sanction in N. C., Deans v. 107 In the one case defendant relieved from because, but of for the liability, care, its own want of no supervening previous injury inflicted; would have while in been the other the plaintiff’s would not have caused the if previous culpability injury the defendant turn been of guilty subsequent carelessness. There is better test accuracy mathematical the soundness metaphysical reasoning than reasonableness converse of by considering as a rule. submitted proposition do not consider
While we ourselves under any obligation our order to conform those of change rulings, Court in in so far as the Court country, Supreme except States review virtue of the United power has. not be amiss to Constitution, a care may say ful examination of' the late which counsel authority S., called our attention U. Bough, (Railroad 368)
Mason Railkoah. has States of the United Courl; the we find that Supremo in announced from the modified or receded principle in 377, that a conductor Ross, S., Railroad v. U. on the same to 1ns orders as to is, of a train those subject for the acting vice-principal, was error think that there no For the reasons given was that the trial intimation of the Judge the to recover. the evidence view of not entitled Error.
Eo in the I concur BunwEivL, J., disposition concurring: case no evidence I see this because made of appeal defendant, and of of on whatever part negligence of plain- part evidence of abundant of which defendant company, tiff The rule of the of abundance which, out full knowledge, caution, promise had been specially of required cars for the pur- him from going obey, prohibited them, circum- “under any of uncoupling pose to an stances,”. Having wore attached engine. when they to all its rule this imperative general promulgated who were charged of the company the servants couplers, were trains of inspecting making up duty be it would that to act supposition permitted in moving engine, was permitted, obeyed. engineer The rule was notice same to act belief. his safety that he should provision expect the movement together were pushed between them. not to for he expected the engine, there is no faith made that it was good (and Assuming constrained not), say feel that was or proof pretence unreasonable beneficent, not an regu- mo a it seems to a conductor lation, purposes while an alter corporation a train is ego Railway Railway. (cid:127)/>. not, should
principle my construed author- opinion, ize the him of rules made abrogation by managing officers the conduct of its govern The servants of a employees. great transportation company constitute an in which army must be rigid discipline enforced, less for the for the safety public than of its own members. must safety There be obedience or there will be disaster. I think the Courts should seek to encour- the strict enforcement of all age reasonable regulations made in faith. good
THE ASHEVILLE STREET-RAILWAY COMPANY v. THE WEST
ASHEVILLE AND SELPHUR SPRINGS RAILWAY COMPANY. Injunction n Street-railways—Charter—ExclusivePrivileges— —
Power City. legislative street-railway company granting charter of a to it certain powers privileges, may privileges “such other as granted by municipal town,” gave authorities of a such power grant privileges railway authorities exclusive Legislature Quiere, right whether the city grant has the authorize privileges. such exclusive Court, pending ip Superior actiox, Civil Buxcombe Hoke, J., heard before at Chambers June Bryson City, 13, 1892, on motion to dissolve the order there- restraining issued. tofore
In the affidavits and considering exhibits filed the Court found the facts to be follows: “ 1. That the under a charter plaintiff, granted by 1881, 64, 786, 1881, Laws ch. made a Legislature p.