#### PICKETT LEAK v. CAROLINA CENTRAL RAILROAD CO.

(Decided April 11, 1899).

Employer and Employee — Reasonable Gore Required of Both — Negligence—Contributory Negligence.

1. It is the duty of a railroad company to have a “foreign car” as well as its own property inspected before using it for either passengers or employees — its liability for defects causing injury to either is the same in both cases.

2. Both employer and employee are bound to use reasonable care ■ — such care as a prudent man would ordinarily use under similar circumstances, and it is usually a mixed question of law and fact to be determined by the jury under proper instructions from the Court.

3. A charge, “That the law imposes upon the employer the duty of exercising greater care of protecting the employee from injury due to the defective condition of appliances than is required of the employee in guarding against accident” is too general and calculated to mislead thé jury.

4. Where an employee, hastily mounting a freight car in the performance of duties required of him, had no time or opportunity to inspect the stirrup before putting his foot on it, he was not guilty of contributory negligence unless it had been palpably defective, as broken and hanging down.

Civil ActioN for damages for personal injuries sustained by alleged negligence of defendant, tried before Greene, J., at March Term, 1898, of MeckleNbueg Superior Court.

The complaint alleged that the plaintiff was a car coupler and switchman in the service of the defendant on September 10, 1896, and was instructed by the engineer in charge of the switch engine, under whose orders he was, to open a switch connecting two tracks in the yard of the passenger depot, in Charlotte, for the purpose of tailing certain cars from the *456main track to a side track, and that be was also instructed by bim to get on tbe first car of tbe train that moved over tbe switch, and while it was moving; that be opened tbe switch, and when tbe first car came over tbe switch, as instructed, attempted to get aboard tbe same, and to enable bim to do so placed bis left foot upon tbe stirrup at tbe end of tbe car and caught bold of tbe bandies fixed above tbe stirrup, or iron step; that when bis weight was put upon tbe stirrup, owing to its negligent and faulty construction, it gave way or yielded to tbe pressure, so that bis foot slipped from tbe same on to tbe track, in front of a moving wheel of tbe car, and was so greatly mashed and mangled that all bis toes except tbe great toe bad to be amputated.

Tbe answer denied negligence on tbe part of tbe defendant and alleges contributory negligence on tbe part of tbe plaintiff. In regard to tbe condition of tbe stirrup or step alleged b ytbe plaintiff to be out of order, tbe answer says if it was defective, tbe plaintiff negligently failed to discover said defect and failed to exercise due and proper care in tbe use of tbe said stirrup, when tbe exercise of due care on bis part would have prevented,any injury to bim; and further, that plaintiff carelessly and negligently stepped upon tbe stirrup in such a manner as to cause bim to slip therefrom and to receive tbe injury of which be complains.

Tbe evidence was conflicting. That of tbe plaintiff tended to prove that tbe plaintiff, acting under orders, went to change a switch to put in a car; be changed tbe switch and tbe engine was coming back, and be went to get on tbe car, and tbe stirrup was loose, and be got bold and went to jump up and it swung under tbe car and let bis foot down on tbe track and it was crushed under tbe wheel. Tbe car was a coal car not belonging to this road; bad been run in tbe depot tbe day before, and this was the first time plaintiff bad anything to do with it.

*457Tbe evidence of defendant tended to prove tbat tbis particular car bad been carefully inspected by a competent ear inspector and tbat it was found in good condition, stirrup and all, previous to injury.

A special instruction asked for by plaintiff and given by tbe Court is stated in tbe opinion. Tbe defendant excepted. Tbe issues and responses are as follows:

1. Was tbe plaintiff injured by tbe negligence of defendant? Answer. Yes.

. 2. Did plaintiff contribute to bis injury by bis negligence? Answer. No.

3. Wbat are plaintiff’s damages? Answer $600.

Judgment accordingly and appeal by defendant.

Messrs. Burwell, Walicer & Gansler, for appellant.

Messrs. Jones <& Tillett, for plaintiff.

Douglas, J.

Tbe plaintiff was a brakeman and switch-man, and bis contention is tbat, in attempting in tbe discharge of bis duties to get on tbe car while in slow motion, tbe “stirrup” under tbe corner of the car, provided for bis use, was defective, and when be put bis foot upon it, gave way, precipitating him on tbe rail whereby bis foot was crushed by the car wheel. Tbe Court properly instructed tbe jury tbat tbe fact tbat tbis was a “foreign” car (i. e. a car belonging on another road) was no defence, for it was tbe defendant’s duty to have such car as well as its own inspected before using it for passengers or employees, and its liability for defects is tbe same in both cases. Mason v. Railroad, 111 N. C., 482; Miller v. Railroad, 99 N. Y., 657; Jones v. Railroad, 92 N. Y., 628. Indeed the plaintiff could sue both companies (Railroad v. Snider, 60 Am. State Rep., 700), and if it was tbe fault of tbe first company *458the latter could recover against it. Moore v. Railroad, 24 Am. State Rep., 194. In Johnson v. Railroad, 81 N. C., 453, where a brakeman was injured by the breaking of the rod from a defect discoverable upon an ordinarily careful inspection, but which was unknown both to plaintiff and defendant, and the plaintiff had no reasonable opportunity for inspection, it was held that the defendant was liable because it had failed to have the rod inspected. Here, the plaintiff, hastily mounting the car in the performance of the duties required of him, had no time or opportunity to inspect the stirrup before putting his foot on it, and was not liable for contributory negligence unless it had been palpably defective, as broken and hanging down.

But we think that the third prayer for instruction given by the Court at the request of the plaintiff, was too general in its terms and therefore liable to mislead the jury. It 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 condition of appliances than is required of the employee in guarding against accident.’7 This may or may not be true, according to circumstances. The true rule is that both are bound to use reasonable care —such care as a prudent man would ordinarily use under similar circumstances; and the relative degree of care required depends upon a consideration of all the circumstances surrounding the respective parties. This is nearly always a 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, a new trial must be ordered.

New trial.