Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-09-01
COURT g | DECISIONS.
Notes Of Cases Recently ided,
Which are Of Interest to
Our People.
DIGESTED BY W. B. MARTIN.
Exclusively for .yirElnian- Pilot.y
LEAK ". CAROLINA c. r. co. 4
Supreme Court OF North Carolina,
Nav s. 1899,

Supreme Court OF North Carolina,
May 8, $780,
A RAILROAD COMPANY IS LIABLE
FOR INJURIES TO A BRAKEMAN
CAUSED BY DEFECTS OF A CAR
OF ANOTHER COMPANY WHICH
IT WAS HAULING OVER IT'S
ROAD.
A BRAKEMAN IS NOT GUILTY OF
CONTRADICTORY NEGLIGENCE IN
STEPPING ON a DEFECTIVE
sT1RRUP ON a CAR. WHEN HE
HAD NO OPPORTUNITY TOY Elk
ANIME THE sTIRRUP AND THE
DEFECT WAS NOT PALPABLY
APPARENT
BOTH MASTER AND SERVANT
MUST USE THE CARE REQUIRED
OF a PRUDENT MAN IN GUARD
+ ING AGAINST ACCIDENTS.
This was an action against the rail-
road company for injuries to brake
man. The lower court gave Judgment
for plaintiff and defendant appealed.
The court says:
The plaintiff was brakeman and
switchman, and his contention is that
In attempting, in the discharge of his
duties. TO get on the car while in slow
motion, the "stirrup" under the corner
OF the car, provided for his use, was
defective, and when he put his foot
upon 1t, gave way, precipitating him
on the rail, whereby his foot was crush
ed by the car wheel. The court prop
erly instructed the jury that the fact
that this was a foreign carl. e., Il
car belonging on another road-was no
defense. for it was the defendants duty
TO have such car, as we'll ms it own.
Inspected before using 1t for passengers
or employees, and its liability for defects
Is the same In both cases, and if it was
the fault OF the first company, the lat
ter could recover against it. In John
son V. Railroad Co., 81 n. c. 453, where
q brakeman was injured by the break
Ing of the rod from defect discovera-
Die upon an ordinary careful inspection,
but which was unknown both to plain
tif and defendant, and the plaintiff
had no reasonable opportunity for In
spection. it was held that the defend
ant was liable, because it had failed
to have the rod inspected. Here the
PLAINTIFF, hastily mounting the car in
the performance Of the duties reuuir-
ed of him, had no time or opportunity
to inspect the stirrup before putting
his foot on 1t, and was not liable for
contributory negligence, unless 1t had
banging down. But we think that the
third prayer for instruction given by
the court at the request Of the PLAINTIFF
was too general in it's terms, and there
fore liable to msead the jury. 1t is as
follows: THAT the law imposes upon
the employer the. duty of exercising
greater care of protecting the employee
from injury due to the defective condi-
ton Of appliances than is required of
the employc in guarding against acct
dent" This may or may not be true,
according to circumstances. The true
rule is that both are bound to use rea-
sonable care,-such care as a prudent
man would ordinarily use under sim
liar circumstances; and the relative de-
gree of care required depends upon
consideration of all the circumstances
surrounding the respective parties. This
is nearly always q mixed question of
law and fact, to be determined by the
jury under proper instructions from the
court. For this error in The charge of
his honor new trial must be ordered.
New trial.
ALDERSON'S ADMIR-. V. ANDERSON.
Supreme Court of Appeals Of West
Virginia.
April S-1Sgg-