#### ELMORE v. SEABOARD AIR LINE RAILROAD.

(Filed June 13, 1902.)

1. NEGLIGENCE — Master and Servant — Railroads.

"Where an- automatic coupler is out of repair for a length of time reasonably sufficient to have it repaired, and an employee is injured in coupling the car, the railroad is liable, whether such employee was negligent in the manner of malting the coupling-or not.

2. CONTRIBUTORY NEGLIGENCE — Negligence—Continuing Negligence — Master and Servant.

Where the negligence-of the railroad is a continuing negligence, there can be no contributory negligence which will discharge its liability to an employee for injuries caused thereby.

MontuomeRV and Cook, J J., dissenting.

ActioN by IT.. J. Elmore against tbe Seaboard Air Line Railway Company, beard by Judge O. H. Allen and a jury, at January Term, 1902, of tbe Superior Court of Wayne County. From a judgment for tbe plaintiff, tbe defendant appealed.

Allen & Dortch, and I. F. Dortch, for tbe plaintiff.

Day & Bell, J. B. Batchelor, and T. B. Womack, for tbe defendant.

CLARK, J.

This ease is simply a repetition of Greenlee v. Railroad, 122 N. C., 977, 41 L. R. A., 399; Troxler v. Railroad Co., 124 N. C., 191, 44 L. R. A., 313, 70 Am. St. Rep., 580, and tbe several cases affirming tbe doctrine therein laid down. It was, in evidence tbat tbe defendant’s cars were equipped with automatic couplers, but where tbe plaintiff was injured in making a coupling, there was evidence tbat tbe automatic coupler bad been out of repair five months or' more *507to tbe knowledge of defendant. Tbe plaintiff testified that be was ordered to' make a coupling and was injured ini so doing. He testified: “If tbe coupler bad been in perfect condition, I would bave been able to couple without putting my foot between there” (the cars) ; “if tbe link had been in perfect condition I would not have had to kick it,” and much other evidence to the same purport, that he used' his foot instead of his hand because the coupler, being out of order, and no stick being furished him, he could only make the coupling which the conductor ordered him to make by using his foot or band, and he had more power in his foot; that he bad seen his conductor use his foot to couple in that way and the conductor had seen him and others do so. The Judge charged the jury substantially that if the coupler was .in repair the defendant was not guilty of negligence, or if the lack of repair of the coupler did not necessitate the plaintiff going between the cars to couple, there was no negligence on tbe part of defendant, but that if the coupler was out of condition for such length of time that defendant could have bad it repaired, but failed to do so, and that plaintiff would not have been injured but for tbe condition of the couplers, and that in the condition in which the coupler was that it was necessary, in order to couple, to use the hand or foot, and that the plaintiff was under the orders of the conductor, who directed him to couple the cars, and in so doing plaintiff was injured, and if the jury further find that he would not bave been injured but for tbe condition of tbe couplers, then tbe jury should find tbe first issue “Yes.”

On tbe second issue tbe Court instructed tbe jury that if the coupler was out of repair and had been for such length of time that the defendant knew, or should have known it, and with the exercise of reasonable diligence could have had it repaired, and the plaintiff coupled the cars under the direction of the conductor, and that it was plaintiff’s duty to obey the *508conductor, and be would not bave been injured but for tbe condition of tbe couplers, to answer tbe second issue (contributory negligence) “No.”

Tbe charge was much fuller and put every phase of tbe evidence wbicb was favorable to- tbe defendant, but tbe above 'presents tbe real point involyed in tbe numerous exceptions. This proposition is settled in tbe cases above cited, to-wit, it is tbe duty of tbe defendant tot use automatic couplers, and if, on failure so to do, injury occurs to an employee, wbicb would not bave happened if there bad been a coupler, this is a continuing negligence on tbe part of tbe employer, which cuts off tbe defense of contributory negligence, such failure being tbe cama causans. If tbe automatic coupler was out of repair for a length of time reasonably sufficient to bave it repaired and this was not done, it was tbe same thing as tbe failure to bave tbe automatic coupler on that car. Without reiterating tbe reasoning wbicb has induced tbe Court to mate and abide by this ruling, and applying it to tbe case in band, tbe judgment below must be

Affirmed.

Douglas,. J., concurs in result.,

COOK, J.,

dissenting.

I do not concur with the opinion of tbe Court. Plaintiff was instructed by the conductor to go back and couple tbe cars while be went to tbe office to1 get orders. Tbe caboose was standing upon tbe main track; tbe box cars to be coupled to tbe caboose were upon tbe sidetrack. Afterwards tbe box cars were put in motion by being “kicked,” and had rolled from tbe side-track upon tbe main track, and approaching the caboose to’ which' they were to be coupled. Tbe couplings upon these cars were “automatic.” Upon tbe caboose car tbe link wbicb connected the drawer pin to tbe lever bad been takren out, so that, if tbe lip1 were shut, it *509bad to be opened with, tbe band. Plaintiff, as well as defendant, knew that this link was out. As tbe bos cars approached tbe caboose, plaintiff saw that tbe lip was closed and knew that the coupling could not be made until tbe lip was opened, and to do this be would have to raise tbe drawer pin with one band, and them open tbe lip. “I (be) looked at tbe other cars (tbe ones approaching) and saw that tbe bumper on them (it) was not open, but was closed. * *' * I did not know these cars were coming so fast. I put my foot down there, and as tbe cars came up with such rapidity they caught my foot. * * * It was caught on tbe rebound.” It is-not contended that it was negligence in giving tbe plaintiff tbe order to couple tbe cars. At tbe time tbe order was given the cars bad not been “kicked” or put in motion. Tbe conductor did not know, nor did tbe plaintiff at that time, that .the lip was closed. So plaintiff was not ordered to do a dangerous act, or to assume tbe risk of any danger. When plaintiff discovered- that tbe coupling could not be made, because tbe lip was closed, tbe box cars were approaching very near to the caboose; it was not bis duty then to go in between the moving cars — it was against tbe rules. Upon a failure to make tbe coupling, the cars would have been stopped and then the couplers could have been properly adjusted and the coupling made with safety. Tbe conductor’s order to go back and couple tbe cars did not impose upon plaintiff an obligation to do so at a hazard, or to take any risk. Had the lip been open — its usual condition. — the coupling would have been made; but being closed, and discovered so to be just as the cars were coming together, plaintiff should have waited until the cars stopped and then adjusted the couplers. .But be chose to do tbe foolish rather than the prudent thing, which! could not have been anticipated or prevented by defendant. Therefore, I think the Court erred in not instructing the jury that upon the whole evidence they should answer the second *510issue, to-wit, “Hid the plaintiff, by bis own negligence, contribute thereto?” (to his injury) “Yes.” Had the conductor been present, and seeing the conditions that existed, and then ordered the plaintiff to make the coupling, then, and in that event, I would concur in the opinion; but such was not the case.

It was the duty of plaintiff to look and see the conditions' that existed, and, from his own testimony, it appears that he would not have taken the risk if he had looked and seen, for he says he “did not know these cars were coming so fast.” Then, can defendant be responsible for such negligence ?

MONTGOMERY, J., concurs in the dissenting opinion.