#### F. H. PARKS v. BURK TANNERY COMPANY and SOUTHERN RAILWAY COMPANY et al.

(Filed 22 December, 1917.)

Master and Servant — Employer and Employee — Pleadings — Negligence— Railroads — Demurrer Ore Tenus — Car Couplings.

Where tbe complaint in an action to recover damages for a personal injury alleges tbat tbe defendant employer, an industrial enterprise, owned and operated cars on a railroad siding, also so used by tbe railroad company, and while coupling cars, in the course of bis employment, furnished witb a defective coupler, tbe plaintiff was compelled t.o kick tbe coupling witb bis foot, which was caught by a splinter and crushed, when bis position rendered it impossible for him to signal the engineer of tbe railroad company to stop, etc.: Held, contributory negligence does not appear as a matter of law, and a demurrer ore temes on tbe ground tbat tbe complaint does not set out a cause of action is bad.

Clark, C. J., concurring.

Appeal from Justice, J., at October Term, 1917, of BtjRke.

Tbe defendants, having filed answers to tbe complaint as amended by leave of tbe court, demurred ore tenus upon tbe ground tbat it does not set out a cause of action. Tbe demurrer was sustained and tbe action dismissed. Plaintiff appealed.

W. A. Self and Spainhour & Mull for plaintiff.

Avery & Ervin and S. J. Ervin for defendants.

BbowN, J.

Tbe pleadings disclose tbat tbe plaintiff seeks to recover damages for a personal injury for negligence, against tbe Tannery Company for requiring plaintiff, its employee, to couple up a car witb defective coupling, and against tbe Southern Railway for delivering such a car to tbe Tannery .Company.

Tbe complaint alleges tbat tbe defendant Tannery Company bad tracks on which it kept engines and rolling stock in constant use in connection witb tbe operation of its business in moving cars of its own as well as those delivered by tbe railway company. It is alleged tbat a car which plaintiff was directed to couple bad a defective coupling, so tbat tbe same would not couple by impact, and was otherwise defective and dangerous; tbat such coupling was out of alignment, and tbat it was necessary for plaintiff to push tbe same into alignment before it could couple, and tbat be put bis foot on it to push it into alignment, when bis foot was caught by a splinter and held so tbat be could not extricate himself nor signal to tbe engineer, and tbat bis foot was crushed between tbe couplings of tbe two cars.

Taking tbe allegations of tbe complaint to be true, as we must when a demurrer is interposed, we are of opinion tbat there was error in sus*30taining it. It is probable that the learned judge based his ruling upon the idea that it appears in the complaint that the plaintiff contributed to his injury by putting his foot on or kicking the coupling and, therefore, could not maintain his action for damages.

It appears that plaintiff is not an employee of the Southern Railway, and it is assumed, we presume, that the Tannery Company is not such a common carrier as comes within the purview of the act of the General Assembly of 1913, abolishing contributory negligence as a defense in actions by employees of railroads for personal injuries, and allowing evidence of it only in diminution of damage.

It is true that where the contributory negligence of a plaintiff is patent upon the face of his complaint and it is of that kind which bars his recovery, it may be taken advantage of by demurrer. Burgin v. R. R., 115 N. C., 674.

But we do not think that is the case here to the. extent that the question may be determined upon demurrer ore tenus. "Whether such defense is open to either or both of defendants and whether plaintiff’s negligence was the proximate cause of his injury are matters that can be more properly determined when pleaded in the answer and after the facts are found.

Reversed.

ClaeK, O. J.,

concurring: While Laws 1913, eh. 6 (Gregory’s Supp., 2645a), provide that in case of contributory negligence, damages may be apportioned between the corporation and the employee in proportion to the negligence of each, it must not be overlooked that the proviso to section 2 thereof specifies, “No such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”

This is an express adoption of the doctrine first laid down in Greenlee v. R. R., 122 N. C., 977, and Troxler v. R. R., 124 N. C., 191, before the passage of any statute, that when the employee of a railroad is injured or killed by the failure of the company to use safety appliances contributory negligence could not be pleaded either in defense or in mitigation of damages to any extent whatever. Both the State and Federal governments later passed statutes to that effect; and in adopting the doctrine of comparative negligence since that time, the statutes, both State and Federal, have been careful to prevent the inference that contributory negligence to any degree can be a defense or mitigation of damages where the company has failed to conform to the requirement of the statute in regard to safety appliances.

*31As there are in North Carolina over 40,000 railroad employees, of whom a large part are employed in the operation of trains, it is all-important to them that the above 'proviso in the statute should not be lost sight of, even when the matter is not directly brought up by an .appeal, when an adverse inference might be drawn if the distinction is not adverted to.