The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-12-21

? pay 10 the COlIIdCludl ISIdlioHo SAiolbilS,
expressly or by implication, between the
plaintiff and defendants; and that the
General Assembly did not intend to for
+ bid the pleas of contributory negligence
in the real Needing of the term. Some
colAts apnear to have confused assump-
ton of risk with contributory negligence.
/ by regarding them as equivalent defen-
i ces, but they are essentially different in
their nature. Contributory negligence, Of
course, always involves the fact of actual
negligence on the part of the plaintiff,
while the simple assumption of risk does
rot of itself imply negligence, which
may or may not exist. A defective ma
chine carefully handled, or a safe ma
I chine carelessly handled may equally re-
suit in an accident; but the resulting re-
apcnsibility would be by no means the
same. This is especially true since the
act Of 81
AS the law now stands, the use of ma
chinery obviously defective will not pre-
i vent the plaintiff from a recovery for an
/ injury resulting therefrom, unless the
apparent danger is so great that it's as
sumption would amount to a reckless in
difference to probable consequences. The
pest definition We can give applicab BILE to
such cases as that at bar, is that adopted
by this court in Hnshaw VS.. Railroad, rs
NJ G. 1047, that the danger Of using the
i defective machine must be not only ap-
parent, but so great that there are more
chances against its safe use than there
are in favor of it. This risk must oe
considered in connection with the skill
and experience of the plaintiff.
The opinion then deals with the evi.
dence of the plaintiff Coley, who was for
thirty years in railroad service. His
/ testimony was that he either had to
catch hold of tho top of the tender or the
drain pipe and the later he considered
to be the most safe. Ii the later had been
fastened properly he would not have been
hurt. Heilig and Lacy's evidence are also
repeated, in which they said drain pipe
should support 1000 pounds.
Taking this evidence as true and con-
STRUNG it in the light most favorable for
the plaintiff, as we are bound to do on q
motion to non -suit or direction Of the
verdict, can we say in the light of our
own decisions that the plaintiff was
guilty of contributory negligence as
matter of law? The question is not
whether the defendant had placed the
drain pipe there for any such purpose;
but whether, when the defendant made
1t necessary fer him TO pull up by some
thing, without placing it Their for the par-
pose, the plaintiff was guilty Of contrib
utory negligence per Sc in catching hold
of drain pipe which was apparently Sc
cure, which he had been using for three
weeks and, which if in proper condition,
could have supported onefs thousand
pounds. 1t seems 10 us there can De but
one answer. 1t was an isssue of fact for
the jury, and in the absence of any error
IN his honor's charge prejudical to the
defendant, we cannot disturb the verdict
1t is well settled that on a motior for
ncn-suit, or its counterpart, the direction
OF verdict, the evidence for the plaintiff
must be accepted as true, and construed
in the light most favorable TO hin, as tho
jury might take that view of it il lett to
them, as they appear TO have done in the
case al bar. Avery " Sexton, % y. c. 247,
etc.
IN cannot be doubted, and in fact ii does
not seem to be seriously questioned, that
it was negligence on the part of the
defendant TO furnish an engine so OH
vicusiy defective for It's intended use
when the defect could have been SO cas-
lily supplied. In fact, it is questionable
whether this case would not come under
the rule of continuing negligence laid
down in the case of Greenlee and Troxlel,
aside from the act of 81.
1t may be that if we were jurors,
would find the plaintif guilty of contrib
utory negligence as matter OF fact, AMI
not at all unlikely that the recovery
would be less. But we are net jurors,
and have no right to assume their func-
t;ons. The plaintiff has a judgment OBJ
tanned in a court of competent jurisdic-
ton. which is before us on appeal only
as 10 matters Of law AS we find no sub
stantial error in his honors' charge, or,
the conduct OF tho trial we cannot disturb
the verdict or reverse the Judgment or
any view we may have as to the mere
weight Of evidence.
Judge Montgomery's dissent consisted
OF only few words. He said: II can
not concur IN the opinion of the court. Il
can serve no useful purpose for me to
write anything further in the matter and
1 content myself with the dissent entered
by me in the case on it's first trial and
reported in 12S N. C. So.
Judge, Cook dissenting, says, 1.-The de-
cision of the court is made to turn upon
the Fellow Servant act of 1897. The
construction placed upon that act, in my
opinion, is not warranted by its text or
the remedy intended 20 be provided BY
the Legislature, Which passed it,"
Judge Cook says: Il do not under
stand that it is within the perview of the
statue to exempt employees from response
bility for negligence in the use Of safe
machinery or to license him TO volun
tarily assume unnecessary risk or hazard
at the expense or upon the responsible
" Of the railroad company The rail
road company necessarily sees through
the eyes Of its employees and a proper
performance Of its service and duties is
dependent upon their eyes, good sense
and good judgment.
! Judge Cook says further. it is not
within the perview OF the Statue either
by expression or intentment, TO abrogate
the assumption Of risk.
! Judge Cook holds that the Judge be-
low erred in putting the question of re-
/ sEonsibiiity to the jury, as to grab iron
en- the engine
Other opinions were handed down as
j follows;
State VS.. Welch. from Macon. no error.