The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-06-08
SUPREME COURT
DECIDES FOR C0LEY.
Continued from First Page.)

personal representative of any such SER
want or employee who shall have suffered
DEATH in the course of his service or
employment with said company by the
negligence, carelessness or incompetency
of any other servant employee agent
of the company, or by any defect in the
machinery, ways or appliances of the COM
pany, shall be entitled to maintain an ac-
ton against such company"
ection 2. That any contract or agree
ment expressed or untitled, made by
any employee of said company to waive
the benefit Of the aforesaid section. shall
be null and void.
Commencing with the often cited case
Of Priestley VS. Fowler, NJ and w. /,
what is known as the Fellow Servant
Law has been developed, until it seems
to have become to be a hardship on the
employees of railroads, where there were
so many employees whose rights depend
on the action of some other employee And
the act of 1897, chapter Sc, was passed to
relieve such employees from what APP
pcared to he hardship, and oppressive
upon them.
And while there had not been uniform
ity in the different jurisdictions as to
what is called the assumption of risks,
it seemed to be we'll settled by the de-
cision of this court (see cases cited above)
that where an employee entered in the
service of q railroad company using de-
fective machinery, knowing that of such
defects, or, where he continued in the en-
ployment after having such knowledge
without notifying his employers without
notifying his sureriors, and protesting
oh nj
would have been held to have waived
such objection, and to have waived such
objection, and to have assumed the risk
arising from the use of such defective
machinery.
Thus it seems was considered by the
Legislature a hardship, and oppressive,
as the competition was so great for such
employment that employees were deferred
from making such complaints, lest they
might lose their places. So it seems that
the Legislature, after providing relief
against acts of fellow servants" enacted
as follows "or by any defect in the ma
chiuery, ways or appliances of the COM
pany, shall be entitled to maintain an ac-
ton against said company" And by the
second section of said act it is provided
'"That any contract or agreement, eX-
of said company to waive the benefit of
the aforesaid section, shall be null and
void" The court has construed this act
holding it to be constitutional, and giving
effect to it so far as it has applied to fell
low servants. Hancock VS.. Railroad Co..
124-222; and we see no reason why we
should not do SO as to the assumption of
risk"
1t is agreed that assumption of risks is
contractural either by express terms or
by implication and disputes usually were
as to whether the plaintiff contracted by
implication, or assumption for dangers
not existing at the date of employment.
And it would seem by this act that the
Legislature intended to put an end to
such contention, by saying in the first
section that he shall have a right of ac-
ton for injuries caused by such defective
machinery and by providing in the sec
ond section that he cannot waive this
right by contract, expressed or implied.
This legislation (Acts 1897, chapter So
seems to be in the same spirit and in
harmon with the acts of Congress of 1898,
chapter 1875, Statues at Large, United
States. In that statute it is enacted in
section that all railroad companies en-
grab irons upon them; and in section
s, the right of action is given to any en-
plOyee injured for the want of any OF the
appliances mentioned in said Act, grab
irons being one of those mentioned. And
then said section provides that no en-
ployee, by remaining in the employment
of such company, shall be deemed to have
assumed such risks by remaining in the
enjoyment of such railroad company.
This is the statute upon which Greenlee' S
and Troxleys cases are based. And
while we do not base our opinion in this
case upon this legislation of Congress, but
on the statute, of 1897, still we think that
this legislation of our State and the con-
struction we are placing upon it, are
supported and strengthened by the Act
of Congress and the construction placed
upon it by this and other courts.
In 1880 the English Parliament passed
what is called the Employers Act in
which the doctrine of fellow servants
heretofore existing in England was very
much the same as in this State, and was
disposed of very much as it was here by
the Act of 1897 The English Act contains
a section which provides that an en-
ployee shall not maintain an action
against his viaster for injuries received
from defective machinery, ways" etc,
unless he gives notice of such defects to
the master or some one superior to him,
unless the master already knows of the
defect. In the case of Thomas VS.. Quar-
tcrman, Is @. B. d., $685. it was shown that
the plaintiff was injured by reason of de-
fects known to the master, and it was
contended by reason of these negative
expressions, used in the statute, they alb
! solved the plaintiff from the doctrine OF
assumption of risk. And one member OF
the court (Lord Asher held with this
contention of the plaintiff, though the
other two members of the court over
ruled him in this view of the case. But
the same question was again presented
in Smith VS.. Baker, Appeal Cases, Law
Reports, House of Lords, 1891, page 1926
where the court was again divided, but
where a majority of the Lords, who put
tehir opinion upon the statute of 1880
agreed with Lord Asher that the statute
did destroy or do away with the inn
piled assumption of risk. We refer to
the English statute, and those cases from
the English courts, for the purpose OF
showing that, while the English courts
may not have expressly decided that the