The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-08-03
THE C0LEY CASE
To Be RE-HEARD
Chief Justice Furches Has so
Ordered.
THE PETITION AND ORDER
Mr. Busbee Argues to the Court That
it Didn't Know the Law.
BURWELL AND WALKER SAY HE'S RIGHT
They Point Out Many Particulars in Which
They Claim 10 Believe the Court Erred
and Then Modestly Lay Before the
Country Their Opinion.

A re-argument of the Coley damage
suit in the Supreme Court was yester-
day ordered bv Chief Justice Furches,
on petition of Mr.. Fabius H. Busbee,
counsel for the Southern Railway.
On June IA. 1898, S. S. Coley, while con-
ductor on shifting engine at Goldsboro,
was thrown from the engine to the
ground, and being run over by wheel
had his arm crushed off and was other
wise injured.
Being a resident Of this city. he later
brought sui. in Wake Superior Court to
recover damages from the railroad in the
sum of $4,000, alleging that his in
juries were due to defective machinery.
in that the railroad had nc glected to put
''hand- holds or "grab-irons'' on the en-
CINE by which he might swing himself up
to ride on the engine when making its
trips about the yard, as was necessary in
his work. In stead of having proper hand
holds, he had to pull himself up by
drain pipe, extending down from the top
of the tender. This he used safely for
nearly a month. then On June 18th, it
gave way, throwing him under the
wheels and he was MANNED for life.
When the case was tried III :he lowe"
court, Coley got verdict for $12,5OO-
the interest makes it row amount to
$13,500. An appeal was taken to the
Supreme Court, where it was argued
Then came a long delay in the filing or
a decision. So long was this delay that
Mr. Busbee made motion for a rehear-
ing, but it was not granted, and finally,
last May a decision was handed down
In this opinion the Fellow Servant
Act" Chapter Sc Private Laws, 1890 was
construed to mean that an employee or
a railroad company by continuing to use
defective machinery and appliances of The
company, in the performance OF his du-
ties, the company knowing of the defects,
is not held to have assumed the risk OF
damage resulting therefrom. Held also
that the trial judge committed no error
in instructing the jury that though 1.-The
drain pipe was not put upon the tender
for a grab-iron' there was no negligence
imputable to the defendant by reason
of the weak condition of the drain pipe.
and that it was for the Jury to say
whether in taking hold of the drain pipe
he acted as a prudent man.
Now the Southern Railway complains
that this decision is not good law, and
on July 25th, through it's attorney, Mr..
F. H. Busbee, filed a petition before
Chief Justice Furches for rehearsng.
On the 9th Judge Furches granted the
petition, and made in the following order:
"Statesville. N. c., July 9th, 1901.
''While l do not agree at this time to
the correctness of some of the conten-
tions made in the application to rehear
this case. l do think as the important
question as to the effect of the statute of
1897, upon the assumption of risk was not
argued, and as it is contended by the Pc
titioner that different construction has
been put upon similar statutes by the
courts of other States. which were not
considered by the court in rendering its
opinion. l think it proper case for re-
hearing. And as / may be in error in
the matters in which l differ with the
petitioner. a general rehearing is ord
cred.
sd. NJ. FURCHES. c. j."
In his petition for a rehearing Mr.
Busbee sets forth that 1.-THE opinion OF
the court is one of far-reaching impor-
lance, not only on account of the amount
of the judgment, but also because very
many cases will be controlled. by the de-
cision," and that 1.-The opinion OF the
court is based upon a construction OF a
statute, which was not contended for III
the argument of the PLAINTIFFS counsel
The following particulars in which Inc
petitioner considers the opinion erroneo Gus
are then set forth
First, the opinion declares that the
act of 1897 entirey repeats the assump-
ton of risk in all cases.
Second, the case cited by the court
(Smith vs. Barker, App. Cases, 1891, page
$3.50 does not sustain the opinion of the
court, and this case is directly in OPP
position to any American authority
Third the decision entirely ignores the
difference between the risks of which the
plaintiff had knowledge, but the danger
OF which he did not appreciate. and the
risks, the danger OF which was so obvious
that by their assumption the plaintiff be-
came guilty Of contributory negligence
Fourth, the legislation of Congress re
quirng grab-lrons, Statutes at Large,
1898, Chapter 1851, quoted by the court,
is entirely confined to cars, and Only
those used in interstate commerce.
Fifth, the court is in error in holding
that the decision of Smith VS.. Baker
does not apply to cases arising under the
Employers Liability statute.
Sixth, the court is in error in stating
that the defendants main contention was
as to the assumption of risk; the judge
below refused to submit such an issue
separately, and the contention was upon
the issue of contributory negligence.
Seventh, the court erred in not abiding
to the error of the Judge below in leav-
ing it to the jury to say whether the
giving way of the drain-pipe or the fall
ure to have grab-irons on the tender
was the proximate cause of the injury.
Eighth, the court erred in saying that
1.-The question OF prudence and the pru-
dent man are always for the jury" This
is the case when the facts are disputed
but not when the reverse is true.
Ninth, the court erred in falling to give