#### JOSEPH BRILEY v. ATLANTIC COAST LINE RAILWAY COMPANY.

(Filed 7 November, 1912.)

Railroads — Negligence—Master and Servant — Safe Place to Work —Safe Appliances — Negligence.

In. an action by an employee to recover damages of bis employer for the failure of the latter to furnish him a reasonably safe place to work, and with safe, proper, and necessary tools, such as are adopted and in general use for doing the work, and for his failure- to use reasonable care and precaution for the safety of the employee engaged therein, it appeared from the entire evidence that the defendant railroad company’s passenger train, for some unexplained reason, careened slightly over the track, crossing a trestle, while slowly running within the limits of a town, twisting the rails on one side so that it became necessary to free the angle bars, used for uniting the rails at their ends, in the work of clearing the.track for an expected train to pass. Owing to the position of the twisted rails, it became necessary to knock off the heads of the bolts fastening the angle bars to the rail ends, with a hammer, and then knock the rails to free the angle bars, which had been bolted in their hollows. This was being done by the plaintiff and two other employees under the .direction of the section master, and while knocking a rail to free an angle bar, the bar flew off, for some unexplained reason, and struck the plaintiff on the head: Held, (1) there was no evidence of negligence of the defendant in failing to provide the plaintiff with a safe place to work, under the surround-*89mg conditions; (2) the plaintiff’s injury was the result of an accident which ordinary foresight and judgment could not guard against, and a motion to nonsuit was properly allowed.

Appeal by plaintiff from 0. H. Allen, J., at Fall Term, 1912, of Pitt.

Civil action. Tbe plaintiff sued to recover damages for injury alleged to bave ensued from negligence of defendant. Motion to nonsuit was sustained. Tbe plaintiff appealed.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.

Julius Brown for plaintiff.

JIarry Slcwmer for defendant.

BeowN, J.

Tbe engine of defendant’s passenger train, for some unknown reason, careened slightly over tbe track crossing a trestle at Greenville, while running very slowly within tbe town limits. Tbe passengers did not know of tbe accident until informed by tbe conductor.

All tbe evidence shows tbe careening of tbe engine twisted tbe rails on one side. Tbe angle bars are pieces of steel bolted in tbe hollow of tbe rails and bolding ends of two rails together. Tbe twisting of tbe rails left tbe nuts of tbe bolts of angle bars next to tbe ground so they could not well be reached by a wrench. Tbe section master, with plaintiff and two other bands, undertook to repair tbe track and get passenger train on its way as speedily as possible.

They were knocking off tbe bolt beads with a hammer when tbe released rail suddenly sprang up in an unaccountable manner and bit plaintiff on tbe bead. His own evidence shows be was not seriously hurt.

Tbe grounds of negligence alleged and set out in brief are: That tbe defendant did not furnish tbe plaintiff a reasonably safe place to work; that it did not furnish the plaintiff with safe, proper, and necessary tools, such as are adopted and in general use; and that it failed to use reasonable care and precaution for tbe safety of plaintiff and tbe other employees.

1. Tbe first ground of negligence is so untenable that it need not be discussed. It was tbe duty of' tbe defendant to relieve *90its passenger train and forward tbe passengers on tbeir journey as speedily as it reasonably could be done. It is manifest from all tbe evidence tbat tbe section master and bis bands were working in tbe only place in wbicb it was possible for them to do tbe work.

2. We will consider tbe other two specifications of negligence together.

In tbe twisted condition of tbe rails, it was necessary to unjoint tbe ends of two rails by removing tbe connecting angle bars. This could only be done by removing tbe nuts or beads of tbe bolts. Ordinarily tbe nuts could have been unscrewed with a wrench, but owing to tbe twisted condition of tbe rail tbe workmen could not get at tbe nuts with a wrench, so it became necessary to knock off tbe beads of tbe bolts (instead of unscrevdng tbe nuts) with a hammer. After the bolts, wbicb went through tbe hollow of tbe rail and angle bar, were removed, either by unscrewing tbe nuts or breaking off tbe beads, it became necessary to remove the steel.angle bar (2 feet long) from the hollow of the rail before tbe rail could be disconnected from tbe end of tbe other rail.

In order to remove tbe angle bars, it was necessary to knock tbe rails with a hammer, and all tbe evidence show3 tbat while tbe other two section bands were hammering tbe rail to get out tbe angle bar, tbe rail accidentally flew up and bit tbe plaintiff.

We quote from examination of plaintiff on this point:

Q. Tbe engine was just bent over; it was not entirely off tbe track? A. Tbe engine was off where I could see when I got there; it was lying down; tbe tender was practically off.

Q. -That bad occasioned tbe twisting of tbe rails? A. Yes, sir.

Q. Was not tbe rail in such a condition tbat wrench could not be used? Tbe bolts were held down and could not be removed with a wrench? A..T don’t know, because we didn’t try to.

Q. As a matter of fact, could tbe angle bars have been removed in any other way than by knocking, tbe way Mr. Whitehurst asked you to do? A. No, sir; tbe angle bars could *91not, but tbe bolts could; tbe nuts could bay© gotten out.

Q. If tbe nuts were down in sueb a way tbat a wrencb could not get at them, bow could tbey be removed? A. Tbe upper side we knocked on.

Q. Tbe bolts were turned under, and wbat Mr. Whitehurst told you was to knock so as to break it loose? A. Tes, sir.

Q. And you knocked a while and Henry knocked a while, and after a while Henry struck a lick and unexpectedly tbe ángle bar sprang up and bit you on tbe bead ? A. Yes, sir.

Q. Can you explain wbat you call an angle bar, when you say you knocked up tbe angle bar? A. It is a bar tbat couples tbe rails together; tbe two rails come together, and it clamps tbe two rails together.

Q. And you use tbe same kind of a hammer? A.. Yes, sir; we have a hammer so as to tighten them up.

. Q. How long is tbe angle bar? A. Two feet.

Q. You say you have bad considerable railroad experience. Is it not customary to break tbe beads of bolts off in this manner and loosen the angle bar; is not tbat tbe usual way to knock them off when tbey are tight ? A. If you go to take them off and nothing is tbe matter, you go and screw them off; if tbey are worn, you break them off.

Q. How do you break them off? A. You knock them off with a hammer.

Henry Daniels, a witness for plaintiff, testifies:

Q. Wbat did Mr. Whitehurst tell you and Joe Briley to do? A. I don’t remember bis language; be told us to go and knock tbe rail and try to get tbe angle bars off and get it straight so we could let tbe freight from Einston go by. Tbey were going to uncouple tbe tender from tbe cars. Joe Briley and me went and knocked tbe rail with tbe hammer.

Q. Tell wbat happened. A. I' don’t know bow long we worked; one would knock a while and tbe other would knock a while. I think Briley and Matt knocked and I took bold of tbe hammer and knocked. When I went to knock tbe bar flew up and struck me on tbe band and struck Briley on tbe bead; it hurt me pretty badly.

*92This is all the evidence offered by plaintiff bearing on the canse of the alleged injury.'

All the remaining testimony, offered by defendant, shows conclusively that the section master was using the only practicable means to unjoint the twisted rail and relieve the train.

We are unable to find any evidence of negligence upon the part of the section master or the defendant.

All the evidence shows that plaintiff's hurt was the result of an accident which ordinary foresight and judgment could not guard against.

“Accidents cannot be eliminated by law; all that the law has done is to say that the employer shall exercise reasonable care to prevent an accident, and the courts hold him responsible when hé fails to exercise such care. The employer is not responsible for an accident simply because he hires, but only when he has contributed to it by some act or omission of duty.” Douglas, J., in Bryan v. R. R., 128 N. C., 390.

The twisted rail might have unexpectedly “popped up” and hit plaintiff had the bolts been removed by unscrewing the nuts instead of knocking off the heads of the bolts with a hammer.

■ The rail could not spring up as long as the angle bar was in place in the hollow of the rail, and all the evidence shows that it could only be removed by hammering on the rail after the bolt heads were knocked off. What caused the rail to spring up is unexplained by the evidence.

In Raiford v. R. R., 130 N. C., 598, a case in all respects very much like the one under consideration, it is said that “An accident is an ‘event from an unknown cause,’ or an ‘unusual and unexpected event from a known cause’; ‘chance, casualty.’ ”

We are of the opinion under this definition of the word “accident” that plaintiff’s hurt was accidental. The cause of the injury is known, but the event was most unusual and unexpected. See, also, Keck v. Tel. Co., 131 N. C., 277; Brookshire v. Electric Co., 152 N. C., 669; Martin v. Manufacturing Co., 128 N. C., 266; Lassiter v. R. R., 150 N. C., 483; Noble v. Lumber Co., 151 N. C., 77; Black’s Law and Practice in Accident Cases, sec. 8.

*93In concluding tbis opinion we can quote with profit the language of Mr. Justice Hoke in House v. R. R., 152 N. C., 398: “The rule requiring a reasonably safe and suitable place to work obtains in cases of machinery more or less complicated and more especially driven by mechanical power, does not apply to ordinary conditions requiring no special care, preparation, or prevision; the defects readily observable and the injury unlikely to be anticipated; in the latter class the element of proximate cause is ordinarily lacking.”

We are of opinion that the learned judge of the Superior Court properly sustained the motion to nonsuit.

Affirmed. Action dismissed.