The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-06-08
SUPREME COURT
DECIDES FOR COLEY
Verdict For $4,000 by Wake
Go. Jury Affirmed.
THE SOUTHERN LOSES
Justice Cook and Montgomery Dissent
From Opinion.
WRITTEN BY CHEF JUSTICE FURcHEs
The Decision Was Largely Influenced by a
Matter That Was Not Called to the
Attention Of the Court by the
Attorneys.

Attorneys.
The opinion in the Coley case was
handed down yesterday, this being the
decision of the Supreme court as to the
appeal of the Southern Railway in the
suit in which Capt. Samuel S. Coley was
awarded $12,500 damages by the Wake
county jury, which tried the case. The
verdict of the lower court is affirmed.
The case has become famous because
with it. After it had been once heard
motion was made by%Mr. F. h Bus
bee, for the Southern, that the case be
re-heard. Then there was a long quiet
A few days ago it was announced that
the case would be re-heard, it being
stated in some quarters that this was
for Justice Cookies benefit as the court
was divided. The re-hearing came off
and yesterday the opinion was handed
down.
This is written by Justice Furches,
for the court, while Justices Montgom-
cry and Cooke dissent. Before the Su.
preme court the case was argued for
the railroad by Messrs. F. III. Busbee
and A. B. Andrews Jr., While Col. T. Nj.
Argo and Capt. w. H. Day appeared
? for Capt. Coley.
The opinion of the Supreme court is
as follows:
This is an action for injuries by the
defendant road In the case it is stated
that the defendant North Carolina Rail
read had been leased to the Southern
before the injury complained of was
received, and that the Southern was il,
possession and operating the road at
that time. But as no point was made
as to this fact on the trial of the case
nor on appeal we will give it no fur
ther attention.
The plaintiff was an experienced rail-
road man. having been engaged in rail,
road work fo rmore than twenty years,
and had been in the employ of the de-
fendant for the last four years. And
on the 14th of June, 1898, while in the
employment of the defendant at Colds
boro, he received the injury complained
of; that prior an duntil the 10Th of
May. 1898, he had used a regular shift
ing engine with sloping or turtle top
tender, but on that day the defendant
took this engine and tender from Colds.
boro and replaced it with an old ROAD
engine and tender unsuited for use as a
shifting engine and tender; that his
work as switch engineer neceSSitated
his riding on the rear end of the tender
much of the time; that he could not
successfully do the work of swthch
conductor without so riding; that be-
sides the tender of the last engine fur
nished being unsuited for his work, it
had nc hand holds, or grab irons to
enable him to raise himself upon its
platform with safety, which it was ne
cessary for him to do to enable him to
signal the engineer; that he saw ana
knew this tender had no hand holds or
grab irons when he received it on the
20th of May, and he knew that it was
dangerous to use it without them, but
that he used it, and continued to use
it without such grab irons until the 14th
of June. when he received the injury
complained of; that to supply the place
of the grab irons. or rather because
there were no grab irons, he used the
drain pipes from the top of the tender
These were tubes or hollow cylinders
leading from the top of the tender to
take off the overflowing water and were
neve rintended to be used as hand
holds. The plaintiff says that he had
frequently used them as hand-holds
before the day of the injury, though he
had used the one on the other side of
the tender most; that on the day of the
injury he had driven down to some
lumber cars and attached the shifting
engine to them and gave the signal to
the engineer to move out. To do this,
the engine would have to move back
wards, and when he gave the signal to
move he undertook to get on the plat
form of the tender, and for the want
of grab irons he took hold Of the
drain pipe, which gave way, Cpulled out
or broke off and he fell to the ground
and was run over by one of the Wheels
of the tender. His arm was crushed so |
badly that it was necessary to ampn
tate it. and he was badly injured other |
wise. He contended that it was no fault |
of his that he was injured, but that it |
was caused by the fault and negligence
of the defendant in not furnishing him |
a tender with grab irons, with which to |
dc his work.
While on the other hand the defend
ant does not deny but what it was
guilty of negligence in not furnishing
a tender with grab irons Tt contendeo
that this was a patent defect seen and
known by the plaintiff on the Goth On
May, whehn he received this engine and
tender, and by his continuing to use
the same from that time to the time of
the injury that was a waiver of any
objection on that account, and an "as- !: