
    O. L. FRY v. NORTH CAROLINA RAILROAD COMPANY.
    (Filed 15 May, 1912.)
    Railroads — Master and Servant — Disobedience of Orders — Proximate Cause — Instructions.
    In an action for damages brought by an employee of a railroad for an injury to liis hand received in uncoupling an air-brake between two cars, the evidence upon the issue as to defendant's negligence was conflicting, alone presenting to the jury the question as to whether the uncoupling was done after the train had stopped, or while it was in motion, which would be disobedience of the defendant’s rules, of which the plaintiff was aware at the time. A charge was held to be erroneous which made no distinction, on the issue of negligence, whether the plaintiff attempted to disconnect the air-brake when the train was at a standstill or while it was in motion, and also in that the court instructed the jury that the defendant was not negligent if the injury was received by plaintiff’s act in disobedience of orders, leaving out thfc question of proximate cause.'
    Atj.ek- and I-Ioke, J.T., concurring; Clark, C. J., dissenting.
    Appeal by defendant from Lyon, J., at January Term, 1912, of MECKLENBURG.
    Tlie facts are sufficiently stated in the opinion of the Court by Mr. Justice Walker.
    
    
      McCall & Smith, JE. R. Preston, and N. R. Graham for plaintiff.
    
    
      O. F. Mason and Shannonhouse & Jones for defendant.
    
   Walker, J.

This action was brought by the plaintiff to recover damages for injuries received while uncoupling an air-hose between two cars, and which he alleges were caused by the negligence of the defendant. The rules of the railroad company prohibited employees from going between cars, while in motion, for the purpose of coupling or uncoupling cars, and plaintiff was aware of this rule at the time of the accident, and knew that he was also forbidden by it to go between cars, while in motion, even by the order of the conductor. He testified that when he was ordered to uncouple cars it was his duty to wait until the train had stopped, and then execute the order. He was ordered by tbe conductor to uncouple tbe cars, but knew, as be stated, tbat be was to do so only wben tbe cars bad stopped. He also knew tbat be was not bound or permitted to obey an order to uncouple cars wben moving, and be was fully protected by tbe rules in refusing to do so, and be testified tbat be would not bave obeyed sucb an order and be did not receive any sucb order, but be was ordered to.uncouple after tbe cars bad stopped. He further testified tbat tbe cars bad come to a full stop wben be went between tbe cars to uncouple. While performing bis duty, tbo cars were started, and bis left band was caught between tbe dead blocks or bumpers and crushed. This was bis version. Tbe defendant alleged and offered evidence to show tbat the cars were in motion wben he attempted to uncouple, and be was hurt by this movement of tbe cars, and not by starting them after they bad stopped. So tbat tbe is(sue was squarely made, whether be was injured by tbe starting of tbe cars after they bad once stopped or by going between moving cars. Tbe plaintiff bad agreed in writing to abide by the rules of tbe company and observe tbe same while in tbe discharge of bis duties, and not to bold tbe company liable for any injuries to himself resulting from bis own disobedience or infraction of tbe rules. Upon this state of facts tbe court charged tbe jury, with reference to the first issue, as follows: “It is the duty of an employee of a railroad company to obey the orders and directions of tbe master, and if you should find by tbe greater weight of tbe evidence in this case tbat W. R. Murray was acting as yardmaster for the defendant’s lessee, as alleged in tbe complaint, and was engaged in making up a train of cars in tbe defendant’s yard in or near tbe city of Charlotte on 2 December, 1910, and tbat while thus engaged be ordered tbe plaintiff, who was an employee of tbe defendant’s lessee, to go between two of tbe cars and to cut off or uncouple the air-hose attached to said cars, and if you should further find tbat the plaintiff, in obedience to said order, went between tbe cars, and while be was between tbe cars, and in tbe act of uncoupling tbe air-bose, tbe defendant’s lessee jerked or shoved tbe train and injured tbe plaintiff, as alleged, tbe court instructs you tbat this would be negligence on tbe part of tbe defendant’s lessee, and you should answer the first issue ‘Yes.’ ” We think that this instruction was erroneous in two respects. It authorized the jury to find that there was negligence if the plaintiff went between the cars to uncouple the air-hose, while the train’ was in motion and in disobedience of the rule, and was thereby injured, whereas the defendant, by its rule or regulation, had provided a perfectly safe way for the work to be done, that is, by waiting until the cars had stopped, when it was the duty of the engineer to protect him and not to move. the train until he had uncoupled the hose and notified the engineer of the fact by the proper signal. It will be observed that the court, in the instruction, makes no distinction between uncoupling when the cars were in motion and. when-they were not. Besides, the jury could have answered the first issue in the affirmative, if they had found'that his going between the ears in obedience to an order was not the proximate cause of his injury. In this respect a similar instruction has been condemned by this Court. Edwards v. R. R., 129 N. C., at marg. p. 81. There was no reference in the instruction to proximate, cause, the charge being that negligence on the part of the defendant was, of itself, sufficient to warrant a finding for the plaintiff on the first issue.

The court charged the jury, upon the second issue, as follows : “The second issue is, ‘Did the plaintiff, by his own negligence, contribute to his injury, as alleged in the answer?’ Now, if you find from the evidence, by the greater weight thereof, the burden being on the defendant to so satisfy you, that the plaintiff was guilty of contributory negligence in that he went between the cars when they were moving, and attempted to release the air-brakes, and you find that the going between the cars, while they were moving, was the proximate cause of the injury complained of, then-you will answer the second issue ‘Yes’; otherwise, you will answer it ‘No.’ ” The jury returned a verdict for the plaintiff, and judgment having been entered thereon, defendant appealed.

”We think the charge rrpon the issue as to contributory negligence was erroneous, and the judge should have told the jury that if the plaintiff was injured because he went between the cars, while in motion, to uncouple, in disobedience of tbe rule, it was, in law, tbe proximate cause of bis injury, wbicb could not be imputed to tbe negligepce of tbe company, but to bis own carelessness and deliberate violation of tbe rple wbicb was made for bis protection. It is plain tbat if tbe cars were moving, tbe plaintiff’s injury was caused solely by bis disobedience of tbe rule, in trying to uncouple tbe bose wben tbe cars were tbus moving. Nothing dohe by tbe engineer in tbe movement of tbe train, if it caused tbe injury, would be negligent, as it was not expected tbat tbe plaintiff would go between tbe cars while they were moving, and jerks will frequently occur in such eases. If tbe engineer knew be was between tbe cars, even though they were moving, and did something willfully and for tbe purpose of injuring him, or even negligently, a different question would be presented, but there is no such evidence in this case. Tbe plaintiff was injured by tbe starting of tbe cars, wben be was between them for. the purpose of uncoupling tbe bose, according to bis contention, dr be was injured by bis own folly and disobedience of tbe rule in going between tbe cars wben they were moving. In the latter case tbe law refers tbe injury to tbe plaintiff’s own negligent and disobedient act.

In Stewart v. Carpet Co., 138 N. C., 60, discussing a similar question, we said: “It follows tbat if tbe jury bad taken tbe defendant’s view of tbe evidence and found tbat plaintiff was, at the time of bis injury, acting in disobedience of orders, no negligence could, be imputed to tbe defendant, even if' tbe elevator was defective, as defendant omitted no duty to tbe plaintiff in respect to its condition, as we have stated, and tbe plaintiff’s own act in disobeying instructions would, in law, be regarded as tbe proximate and, indeed, tbe only cause of bis injury. Tbe defendant was entitled to have this view of tbe case submitted to tbe jury, but tbe charge 'of tbe court excluded it.” And in Whitson v. Wrenn, 134 N. C., 86, tbe same principle is stated, as follows: “Instead of tbe plaintiff having been commanded to do a dangerous act, it is assumed in the instruction, and there was evidence to show, tbat be was ordered to do tbe particular work assigned to him in a safe way, but elected to do it in bis own way, wbicb turned out to be a dangerous one, and which actually resulted in his injury. The law, under such circumstances, refers the injury to his own fault, and not to any wrong on the part of his employer.”

It has been held directly in other jurisdictions that, if an employee attempts to couple or uncouple cars while they are in motion, in violation of the company’s rules, which are known to him and which provide a safe way for doing the work, and is injured, he is guilty of such negligence as bars his recovery of damages. Sedgwick v. R. R., 76 Iowa, 340; Darracott v. R. R., 83 Va., 288; Johnson v. R. R., 38 W. Va., 206; Fennill v. R. R., 129 N. Y., 669.

In Johnson v. R. R., supra, the Court said: “It appears from the plaintiff’s own testimony that, if he did not in fact read the rule of the company, he frequently had it in his hands with opportunity to read it, and from the testimony of one of his witnesses, that ‘men are always notified not to go in between the cars to uncouple, while they are in motion, and that it is unnecessary, and obviously dangerous at all times’; and it is equally clear from plaintiff’s own testimony, and that of his witnesses, that his violation of this rule was the proximate cause of his injury, without which it would not have happened. To hold otherwise would be giving a party the advantage of his own wrong.” See, also, Mason v. R. R., 111 N. C., 499, and 114 N. C., 724.

He was not ordered to uncouple while the cars were in motion, but to do so after they had stopped; there was not any defect in the construction of the cars, if that would make any difference in this kind of case; the plaintiff knew that he had been forbidden to uncouple the angle cock or the hose while the cars were moving, >and that it was dangerous to do so, and he would not have done so because of the danger and the rule of prohibition. This is his own testimony. The question of fact, as to whether he attempted to uncouple the cars while they were in motion, or when they were at rest, was one for the jury.

The error in the instruction of the court consists in leaving to the decision of the jury, as a question of fact, whether, if he attempted to uncouple moving cars, his disobedience qf the rule was the proximate cause of the injury, as it was plainly so as matter of law. If bis testimony is accepted, as true, be was not ordered to go between moving cars, but to wait until tbe cars bad stopped; so tbat it necessarily follows tbat tbe engineer and conductor did not know be was between tbe cars while they were in motion, and there is no evidence tbat they did. How, then, could they be guilty of negligence with respect to him? By bis own words, be bad assumed a perilous position, if be violated tbe express order and went between moving cars, and bis own confessed negligence was not only tbe proximate cause, but tbe sole cause of bis injury. This is in accordance with reason and the acknowledged rule of law. It is not opposed to tbe precedents nor does it violate any statutory provision or change tbe burden of proof as fixed by law.

There was error in tbe following instruction as to damages: “If you find tbat be has been permanently injured, and tbat such injury partially incapacitates him to earn money, then be would be entitled to recover damages for partial incapacity, if you find the injury was caused by tbe negligence of tbe defendant. He would be entitled to recover tbe difference between what he is able to earn at tbe present time, and in tbe future, and what he would have been able to earn if tbe accident bad not happened; and passing upon bis expectancy, tbe mortuary table has been read to you, and you will bear tbat in mind in awarding damages, if you find tbat tbe plaintiff is entitled to recover anything.” In an action for injuries by negligence, such as this one, the plaintiff is only entitled to recover tbe reasonable present valu-e of bis diminished earning power in the future, and not tbe difference between what be would be able to earn in tbe future, but for such injury, and such sum as be would be able to earn in bis present condition. R. R. v. Paschall, 92 S. W., 446. Where future payments for tbe loss of earning power are to be anticipated by tbe jury and capitalized in a verdict, the plaintiff is entitled only to their present worth. Goodhardt v. R. R., 177 Pa. St., 1. The damages to be awarded for a negligent personal injury resulting in a diminution of earning power is a sum equal to tbe present worth of such diminution, and .not its aggregate for plaintiff’s expectancy of life. O’Brien v. White, 105 Me., 308. Tbe rule, as we see, may be stated witb varying phraseology, but they all carry the same idea; that the estimate should be based upon the present value of the difference between plaintiff’s earning capacity, and not the total difference caused by the injury. The rule is supported by many authorities in this and other jurisdictions. Pickett v. R. R., 117 N. C., 616; Wilkinson v. Dunbar, 149 N. C., 20; Benton v. R. R., 122 N. C., 1007; Watson v. R. R., 133 N. C., 188; R. R. v. Carroll, 184 Fed. Rep., 772; Fulsome v. Concord, 46 Vt., 135; Kenny v. Folkerts, 84 Mich., 616.

Nothing said in this opinion conflicts with the decision in Boney v. R. R., 155 N. C., 95, as in that case it was adjudged that the defendant had the last clear chance to avoid the injury to the plaintiff, by displaying the proper signal at the switch, notwithstanding any negligence of the plaintiff in disobeying the rule of the company which limited the speed of the train at the place of the accident to six miles an hour.

New trial.

Alleest, J\,

concurring: I agree with the opinion of the Court that the question of proximate cause is involved in the first issue, and that before the "jury can answer that issue in the affirmative they must find that the defendant was negligent and that this negligence was the proximate cause of the injury.

Otherwise, the jury could find that the defendant was negligent and that the plaintiff was not guilty of contributory negligence, and could award damages to the plaintiff without finding that the negligence of the defendant caused the injury to the plaintiff.

I also concur in the opinion expressed by the Chief Justice, which I do not understand to be controverted, that the negligence of the plaintiff, before it will bar his recovery, must be' contributory, and that to be contributory it must be either the sole proximate cause of the injury or it must concur in point of' time with the negligence of the defendant in bringing it about; but I do not think there is any reasonable view of the evidence in this case tending to show that the plaintiff went between the cars while they were in motion, that the cars stopped, and that he was then injured by a sudden movement of the train, and it is upon this view that the opinion of the Chief Justice is predicated.

The only question of fact in dispute between the plaintiff and the defendant was whether the cars were in motion when the plaintiff went between them, and the plaintiff did not testify or contend that he went in while the cars were in motion, that they then stopped, and that he was afterwards injured by the movement of the cars; and I agree to a new trial because I do not think that the jury could have understood from the charge that the determination of the issue depended almost entirely upon this one fact.

Hoke, J.

I concur in the decision that a new trial should be awarded, being of opinion that there was error in the instruction as to damages.

Claek, C. J.,

dissenting: Notwithstanding the rules of the company prohibited employees from going between ears while in motion, if the plaintiff had orders to do so from the yardmaster, and was injured in consequence, the company is liable. Mason v. R. R., 111 N. C., 485; s. c., 114 N. C., 718.

On the first issue, “Was the plaintiff injured by the negligence of defendant?” there is no question of proximate cause, but of direct cause. The language of the issue itself is.clear as to this, “Was the plaintiff injured by the negligence of the defendant?” The court charged in accordance with the precedents and the jury found in the affirmative.

The second issue is, “Was the plaintiff guilty of contributory negligence ?” Upon the very frame of the issue the question of proximate cause is its essential element, which the statute requires the defendant to allege and prove. Unless the negligence of Ihe plaintiff contributed to the injury, i. e., was the proximate cause thereof so as to exculpate the defendant from liability for the injury which on the first issue the jury found the defendant caused the plaintiff by its negligence, then the defendant is liable. The very'heart of the issue is the inquiry of fact as to whether the plaintiff contributed to the injury, and by such negligence as was the proximate cause of the injury he sustained. Tbe charge of the court properly presented the real issue of fact in controversy, and that was, “Did the plaintiff by stepping in between the moving cars, if he did so step in (which the plaintiff testified that he did not), contribute to his injury, or was it an act entirely disconnected with the injury, which was caused solely by attempting to uncouple the hose while the train was stationary?”

The jury found either that the plaintiff did not step in between the cars while in motion, which was his testimony, or that, if he did, this did not contribute to — that is, that it was not the proximate cause of — the injury, but was totally disconnected with the injury, which was caused by the sudden jerking of the car while the plaintiff was uncoupling the hose after the train had stopped. This was a question of fact for the jury, as to which the judge could have expressed no opinion.

The lawmaking power of a just and humane people has often found it necessary to legislate, for the protection of employees injured in the service of railroad companies. It has been enacted (now Revisal, 483), contrary to the former ruling of this Court in Owens v. R. R., 88 N. C., 502, that the burden is upon the defendant to allege and prove contributory negligence. It must not only prove negligence on the part of the plaintiff, but that his negligence was the proximate cause of his injury. A later act (now Revisal, -2646) cut off the defenses of the assumption of risk and that an injury was caused by the negligence of a fellow-servant. . The Federal statute not only embraces the above provisions, but it has gone further and has provided that contributory negligence shall not be a bar to any action, but can only be considered by the jury in estimating the amount of the recovery. This is doubtless the result of the decisions of some courts upon above statutes, not in accord with their spirit.

To hold that the proximate cause is a question of law for the court, and not one of fact for the jury, is to reverse our entire doctrine in regard to negligence. When we adopted the “rule of the prudent man” we made negligence an issue of fact and not one of law. Proximate cause, has always been an issue of fact to be found by the jury.

On tlie issue of damages the court erred in tlie respect pointed out, but this entitles the defendant merely to a new trial upon that issue, for the error is totally disconnected. from the issues as to negligence and contributory negligence.

There should be a partial new trial over the issue as to damages o^ily.  