#### LILES v. LUMBER COMPANY.

(Filed September 11, 1906).

Lumber Loads — Fellow-Servant Act — Defective Couplers— Orders — Negligence—Contributory Negligence — Continuing Negligence — Proximate Cause — Instructions—Corroborating Testimony — Exceptions and Objections — Briefs.

1. The provisions of the Fellow-Servant Act, Rev., see. 2646, apply to corporations operating railroads for the purpose of moving logs.

2. Where an employee of a lumber road, acting under the order of the general superintendent, was injured in coupling defective ears of which he had no notice until it was too late to escape, there was no error in refusing a motion of nonsuit.

3. The defendant’s contention that, failing to examine the coupler and ascertain its defective condition before obeying the order of the general superintendent was not only negligence, but, as matter of law, the proximate cause of the injury, cannot be sustained.

4. An instruction that if when the plaintiff attempted to couple the cars and was injured, great danger in doing so was manifest to him, he would be guilty of contributory negligence, though he was told to malee the coupling by defendant’s superintendent, but if he reasonably believed there was no danger and did only what a prudent man would have done under similar circumstances, then he was not guilty of contributory negligence: Held, there was no error of which the defendant could complain.

5. In an action by an employee of a lumber road for an injury alleged to have been received from a defective coupler the use of a defective coupler was a violation of a positive duty, and in connection with an express order of the superintendent to malee the coupling was continuing negligence, and the omisa oemsems of the injury.

6. Where the evidence was conflicting as to whether the plaintiff, in going between the cars to make the coupling, was disobeying orders, the Court properly submitted this question to the jury.

7. The fact that an assistant of defendant’s superintendent, in a general instruction, told plaintiff not to couple cars would not relieve plaintiff of the duty of obeying an express order given by the superintendent.

*408. In construing an instruction given by tlie trial Judge, the entire charge will be examined and language excepted to read in connection with tl\e context.

9. Where several witnesses testified to certain facts which the trial Judge at the time stated were competent only for the purpose of corroboration, and when charging the jury in reciting the testimony of one of these witnesses he repeated that it was to be considered only for the purpose of corroboration, but failed to do so in reciting the testimony of the other witnesses, under Rule 27 of this Court an exception to such omission cannot be sustained, in the absence of a request to charge that the same rule applied to all of the testimony of that class.

ActioN by J. IT. Liles against Eosburg Lumber Company, beard by Judge James L. Webb and a jury, at the November Term, 1904, of the Superior Court of Halifax.

This.is ah action for the recovery of damages for personal injuries sustained by plaintiff while in the defendant’s employment. It is admitted that defendant corporation was, at the time of the accident, “operating its railroad in carrying logs for mill purposes.” Plaintiff testified that he was employed by defendant to oil cars, number cars, and change switches. That he was working under the direction of Mr. Eerrall, who was general superintendent, employed plaintiff, managed aind directed all the work. At the time of injury plaintiff had been in defendant’s employment twelve or fourteen days, was inexperienced in railroad work. Log-train No. 1 was coming in; plaintiff had been oiling the car; Eer-rall told him to put the load on the sidetrack — there were three other loaded cars there. When the train came in plaintiff. changed the switch and started back; Eerrall said' that there was no pin in that car, to get one out of the'rear car and put it in there. As he was trying to do so, he got mashed. Eerrall told plaintiff to get the pin out of the rear car and come and put it in the one which was backing up. That he tried to do so, but was hurt before he could put it in. Was. in the act of putting it in, the car was moving back, the logs *41extended beyond tbe end of tbe car. Tbe brace that beld up tbe draw-beads was broken, and one was dropped down, leaving it so that tbe other draw-bead would pass until it struck tbe pin. They lapped so that one would run into and strike tbe pin, and that caused tbe cars to come together. Tbe logs were not loaded even; some extended further over'end of car than others, “two feet, or something like that.” Plaintiff did not notice whether they were properly loaded until after he was injured. He says: “The time tbe car was up there, it was so soon on me that I did not have time to get out. I attempted to get back, but did not have time to do so before it was on me. I saw that tbe coupling was broken after I got in, but too late for me to get out. I do not know whether Mr. Ferrall knew of tbe condition of tbe coupling before tbe injury. He was present when I went in, looking at me; told me to get a pin and make tbe coupling. They were flat cars. Mr. Ferrall never said anything to me about coupling cars until tbe day I was hurt. I was hurt because tbe draw-bead being dropped down let it come about two inches further than it would (otherwise) have done.”

Plaintiff was asked: “If you bad looked at these logs as they were loaded when you first went to tbe car, to couple it, could not you have told that they were improperly loaded ?” “I did not notice particularly.” “I ask if you bad looked.” “If I bad looked I reckon I could have seen it.” “If you bad looked at the logs you could have told that they were improperly loaded ?” “If I bad any experience. I could not. have told, because I did not have any experience in coupling.”

_ There was evidence on behalf of defendant contradicting plaintiff’s statement that be was ordered by Mr. Ferrall to make tbe coupling. There 'was evidence that plaintiff made statements both corroborating and contradicting bis testimony. No exceptions appear in tbe record in regard to the testimony respecting tbe extent of tbe injury or measure of damages. Tbe defendant submitted a number of prayers for *42special instructions. The exceptions to the ruling of the Court are set out in the opinion. There was judgment for the plaintiff, upon the verdict, to which defendant excepted and appealed.

S. G. Daniel, E. L. Travis, J. H. Kerr and Claude Kitchin for the plaintiff.

Day & Bell, Murray Allen and B. G. Green for the defendant.

CoNNOR, J.,

after stating the case: While defendant noted several exceptions to rulings of his Honor upon the admission of testimony, they are not noted or urged in the brief, and, under the rule of this Court, are treated as abandoned. Rule 34, 140 N. 0., 666.

The first exception insisted upon is pointed to the refusal of the Court to charge the jury that, upon all of the evidence, the plaintiff is not entitled to recover. This instruction assumes that the jury should find that the transaction occurred in the manner testified to by plaintiff. Defendant contends that the testimony construed in the light most favorable to plaintiff shows, as matter of law, contributory negligence. The defendant overlooks the decision of the Court at the last - term in Hemphill v. Lumber Co., 141 N. C., 487, in which it is held that the provisions of Revisal, sec. 2646, apply to corporations operating railroads for the purpose of moving logs. The relative rights and liabilities of the parties to this action are governed by the statute, as construed by the Court, in a line of cases beginning with Greenlee v. Railroad, 122 N. C., 977. In Elmore v. Railroad, 132 N. C., 865, the question was considered and, following Mason v. Railroad, 111 N. C., 482, it was said that when an employee, acting under the order of the conductor, was injured in coupling defective cars of which he had no notice until it was- too late to escape, it was error to withdraw the case from the jury. *43There was evidence on tbe part of plaintiff that tbe coupling was defective, and that such defect was tbe proximate cause of tbe injury; that be was ordered by tbe general superintendent to make tbe coupling. Tbe defendant’s contention that failing to examine tbe coupler and ascertain its defective condition before obeying tbe order was not only negligence, but, as matter of law, or legal inference, tbe proximate cause of tbe injury, cannot be sustained. If it bad appeared that be knew of such defect, and that tbe chances of being injured in obeying tbe order were greater than in doing so safely, and that, with such knowledge, be took tbe chances, under tbe ruling of this Court in Elmore's case, supra, be could not recover. Tbe use of a defective coupler was a violation of a positive duty, a constant menace to employees, and, in connection with an express order of tbe superintendent to make tbe coupling, was continuing negligence, and tbe causa causans of tbe injury. Tbe principle upon which Gi'eenlee's case and a number of others are based has been repeatedly announced and uniformly applied by this Court. Llis Honor correctly declined to give tbe instruction requested. In this connection be charged tbe jury:

“It was tbe duty of tbe plaintiff to have acted as a prudent man would have acted under similar circumstances, taking into consideration all tbe conditions and circumstances at tbe time. If, at tbe time tbe plaintiff attempted to couple tbe cars and was injured, great danger in doing so was manifest to him, but, notwithstanding such manifest danger, be did attempt to couple tbe cars and in doing so was injured, then tbe Court charges you be was guilty of contributory negligence, notwithstanding you may find that be was told to do so by tbe witness Ferrall, tbe defendant’s agent and manager. If you find that at tbe time tbe plaintiff went in between tbe cars to make tbe coupling, or attempted to make it, be reasonably believed that there was no danger in doing so, and did only what a prudent man would have *44done under similar circumstances if be was coupling cars, then tbe Court charges that he was not guilty of contributory negligence, and you should answer the second issue ‘No,’ that is, the issue of contributory negligence — provided you find from the greater weight of the evidence that he was ordered to make the coupling by the defendant.”

There was no error in this instruction of which the defendant can complain.

We adhere to the conclusion reached by us in Hemphill's case, supra, that roads operated for hauling logs come within the beneficent provisions of Hevisal, 2646. The statute is remedial, being for the protection of employees on railroads from injury by reason of defective machinery, ways or appliances. "We think that the evils intended to be remedied, and the protection extended, as well as the language of the statute, include all corporations' owning or operating railroads. The question is so fully discussed and the authorities cited by Qlarh, G. J., in Hemphill’s case, supra, that it is unnecessary to do more than refer to the opinion therein. Eor the same reason the defendant’s eighth exception cannot be sustained.

The twelfth exception is directed to the following instruction given to the jury: “That if the jury shall find from the evidence that the defendant’s car was equipped with a broken draw-head, so that the draw-heads of the.two cars passed each other instead of meeting when they were brought together for coupling, and permitted the cars to come so close together as to crush a person coupling them, that would be negligence; and if they find from the evidence that the defendant so loaded its logs on said cars that the ends projected so far over the ends of the cars that when they were brought together to be coupled the ends of the logs on the two meeting cars came so close together as to crush a person coupling the cars, that would be negligence — provided these defects were known to the defendant, or could have been known by reasonable *45care and diligence. If you find from the evidence that plaintiff, in obedience to the order of Eerrall, the superintendent of the defendant company, undertook to couple said cars, and on account of the broken condition of the draw-head and the negligent manner in which the logs were loaded, was caught and crushed between them and injured, you will answer the first issue ‘Tes.’ ”

Defendant says that there is no evidence that the defect in the draw-head alone would have caused the injury. Plaintiff said: “I was hurt because the draw-head, being dropped down, let it come two inches further than it would have done.” The plaintiff simply meant to say, as we construe his testimony, that the extension of the logs would not have injured him if the coupler had not been broken as described by him. This is perfectly consistent with the conditions as he described them. Two negligent acts may so operate as to become jointly the proximate cause of the injury.

Defendant says that there was evidence that plaintiff was told not to couple cars; and if the jury believed this, the plaintiff, in going- between the cars to make the coupling, was disobeying orders, and that in such case defendant owed him no duty, citing Stewart v. Carpet Co., 138 N. C., 60. His Honor clearly recognized this to be the law, and made the defendant’s liability depend upon whether plaintiff attempted .to.couple the cars in obedience to the order of the superintendent.

W. T. Liles, an assistant of Eerrall, says that when he put plaintiff to work he instructed him not to couple cars. Plaintiff denies this. It therefore became a question for the jury. If Liles did, in a general instruction, tell plaintiff not to couple the cars, it would not relieve him of the duty of obeying an express order given by the general superintendent, the superior of both. In several parts of the charge, which is very 'full, his Honor instructed the jury that they must find that plaintiff attempted to make the coupling in obedi*46ence to Ferrall’s Order before they could answer the first issue in the affirmative. At one time his Honor says: “Did the plaintiff go in there without being ordered by Eerrall? Did he go in there of his own volition ? If he did, you will answer the first issue ‘No.’ ” In another portion of his charge, after presenting certain phases of the case to which there is no objection, he concluded: “If plaintiff undertook to couple said cars because he was so ordered by said superintendent, and was injured as alleged, he is entitled to recover, and you will answer the first issue ‘Tes.’ ”

Defendant excepted to the words “he is entitled to recover.” It is too well settled to require or justify the citation of authority that in construing an instruction given by the trial Judge, the entire charge will be examined and language excepted to read in connection with the context. If we were required to disassociate the language excepted to, we would' be compelled to sustain the exception. It is elementary that such an instruction, standing alone, would be error; but it would do violence to all fair rules of construction and attribute to the jury a degree of ignorance rendering them unfit for the important duties imposed upon them by the law, to suppose that they did not understand that the Judge was referring only to the first issue, as he expressly stated. In that connection and at that time no reference whatever had been made to the question of contributory negligence. While we do not commend the use of the expression, we cannot find in it, as used by his Honor, reversible error.

After stating an hypothesis which if found to be true, his Honor told the jury they should answer the first issue in the negative, he said: “But if you find from the greater weight of the evidence that Ferrall told this man to go in and make this coupling, why then you will consider the second issue, ‘Was the plaintiff guilty of contributory negligence?’ That means, gentlemen, was his negligence the proximate cause of his injury ?”

*47To this language defendant excepts. Tbe criticism is tbat tbe language makes tbe defendant’s liability depend entirely upon tbe question whether defendant’s superintendent ordered tbe plaintiff to make tbe coupling, regardless of all other questions. Very much testimony bad been introduced tending to, and if believed, clearly contradicting plaintiff in tbat respect. Eerrall denied tbat be bad given such order. Several witnesses bad sworn tbat plaintiff bad made contradictory statements. Dr. Picot and others bad testified to corroboratory statements. It is evident tbat upon tbe first issue this question was tbe principal fact in controversy. Before using tbe language excepted to, bis Honor bad fully stated.tbe contentions of tbe parties and tbe essential elements upon tbe existence of which tbe answer to tbe first issue depended. His Honor again stated tbe basis of plaintiff’s claim in language to which' there was an exception which was abandoned in this Court. We cannot think tbat tbe jury could have misunderstood bis Honor or been misled by his language. Tbe exception does not present tbe question decided in Tillett v. Railroad, 115 N. C., 662; Williams v. Haid, 118 N. C., 481. In those cases separate and distinct propositions of law, one of which was erroneous, were laid down by the Court.

Plaintiff introduced Dr. Picot to prove declarations made by him after tbe injury, in regard to tbe manner in which it occurred. He also introduced bis father and another witness who were present and beard other declarations.

At tbe time all of this class of testimony was admitted bis Honor stated tbat it was competent only for tbe purpose of corroboration. When be charged tbe jury, reciting Dr. Picot’s testimony, be repeated tbat it was to be considered only for tbat purpose, but failed to do so in reciting tbe testimony of tbe other witnesses.

Tbe exception is disposed of by Rule 27, 140 N. C., 662: “AVhen testimony is admitted, not as substantive evidence, *48but in. corroboration or contradiction, and that fact is stated by tbe Court, when it is "admitted, it will not be ground for exception that the Judge fails in his charge to again instruct the jury specially upon the nature of such evidence, unless his attention is called to the matter by a prayer for instructions.”

Defendant suggests that after stating to the jury that Dr. Picot’s evidence was to be considered only as corroborative, and failing to repeat the same in connection with the testimony of the other witnesses, was calculated to impress the jury with the belief that they could consider such testimony as substantive evidence. We cannot think so.' If such impression was made on the mind of counsel at the time, he should have requested the Court to say to the jury that the same rule applied to all of the testimony of that class. We do not doubt that his Honor would have promptly done so. • The exception cannot be sustained.

The record contains a number of exceptions to his Honor’s charge, all of which, except those discussed herein, were abandoned.

We have examined the entire charge and find no error of which defendant can complain. As his Honor repeatedly told the jury, the principal controversy in respect to the facts was whether the plaintiff was ordered by the defendant’s superintendent to make the coupling. That question was fairly submitted, and upon the instructions given the jury they found for the plaintiff.

No Error.