PEDRICK V. RAILROAD. J., says that the fact of nuisance must be established by an action at law or "by strong and unanswerable proof." (Italies his). The same principle controlled the Court in Wilder v. Strickland, 55 N. C., 389, Nash, C. J., saying that if the erection of the mill should result in a nuisance, the courts of law would be open to the complainants. Hyatt v. Myers, 73 N. C., 232; Dorsey v. Allen, 85 N. C., 358; Reyburn v. Sawyer, 135 N. C., 328. When we look into other jurisdictions we find the same rule uniformly adhered to. In Eaton v. N. Y. & L. B. Railroad Co., 24 N. J. Eq., 49, which was a bill to enjoin the construction of a bridge over a navigable water, the Chancellor said: "The work which is sought to be enjoined is a public enterprise of much importance to the people of the State, who, through their Legislature, have authorized its construction. I find no evidence of bad faith on the part of defendant, nor even any imputation of it. This Court is always reluctant to stay the progress of such enterprises, and will only do so in a case clearly calling for its intervention." He further says that if the defendants have done any wrong or unauthorized act "they may be called to answer for it in a court of law. They receive no license or immunity by the refusal of this Court to interfere with them on this application." There is another view of the case pressed upon our attention. It appears that the defendant made contracts for the construction of the bridge and expended large amounts of money in the preparation for its placing; that for several months it was at work thereon. That pilings were driven, the foundation of the structure made and, as one witness said, about one-fourth of the work done before any application was made for an injunction. It is said in reply to this that plaintiffs had made application to the Attorney-General to institute suit, and were awaiting action by him. While the delay in bringing the action is not controlling in our minds, PEDRICK V. RAILROAD. It is manifest we cannot disregard the facts in the record. that the question of the location of the bridge has been discussed by the citizens of Washington and the defendant for some time, and that there is a division of public opinion in regard to it. The reports of Captain Johnson of the engineer corps show this. The surveys were being made and many and most unmistakable steps were taken showing that defendant had selected the location for the construction of this bridge. The observations of the Chancellor in Eaton v. N. Y. & L. B. Railroad, supra, in this aspect of the case, are in point. It may be proper to say that we do not concur in the view pressed by defendant, that the decision of the Secretary of War permitting the location of the bridge is conclusive. The control of its navigable waters is with the State, the authority of the General Government being only cumulative protection from an interference with commerce. Lake Shore & M. Railroad v. Ohio, 165 U. S., 365. Upon a careful review of the evidence and authorities, we concur with his Honor, and his judgment must be Affirmed. BROWN, J., did not sit on the hearing of this case. HAIRSTON v. LUMBER CO. HAIRSTON v. LEATHER COMPANY. (Filed December 22, 1906). Railroads-Automatic Couplers-Negligence-Continuing Negligence-Contributory Negligence-Assumption of Risks-Fellow-servant Act-Recklessness-Scope of Employment-Disobedience of Orders-Issues. 1. In an action for injuries received in coupling cars without automatic couplers by an employee of a large manufacturing company which in connection therewith and as part of the same owns twelve to fourteen miles of railroad track on which it operates with its own crew, engine and cars belonging to it, and the cars of other roads, the Court was correct in charging the jury that the failure of the defendant to equip its cars with automatic couplers was negligence, and that if such failure was the proximate cause of plaintiff's injuries, they would answer the issue as to negligence "Yes." 2. The jury, under the charge, having found the issue of negligence against defendant, under the principle established in the Greenlee and Troxler cases, both the defenses of assumption of risk, which ordinarily includes the negligence of a fellow-employee, and that of contributory negligence, are closed to defendant, unless, perhaps, the negligent conduct of the injured employee should amount to recklessness. 3. The Fellow-servant Act, Rev., sec. 2646, applies to the railroad of defendant company and shuts off the defense of injury by negli gence of a fellow-servant and bars all defenses by reason of assumption of risk unless the "apparent danger was so great that its assumption amounted to reckless indifference to probable consequences." 4. Where the jury found that the plaintiff was injured by the negli gence of the defendant in failing to have its cars equipped with automatic couplers, the only defense open to the defendant, in the absence of any evidence of recklessness, was whether plaintiff was injured in the course of his service and employment, and the Court properly submitted a separate issue as to this matter. ACTION by Luther Hairston against the United States Leather Company, heard by Judge O. H. Allen and a jury, at the September Term, 1906, of the Superior Court of BUN COMBE. HAIRSTON V. LEATHER Co. There was allegation and evidence on the part of plaintiff tending to show that defendant, a corporation engaged in the business of manufacturing leather and extracting tannic acid, in aid of and as a part of its enterprise, had constructed and was using 12 to 14 miles of railroad track, standard gauge, in and around its plant at Old Fort, N. C., and in operating this road had its own crew, engines, cars, etc.; and also used and shifted the railroad cars of other roads on which wood required for its purposes was brought to its plant. This wood was brought from various localities in railroad cars, and these cars were placed by the railroad on its sidetrack, where the engines and crew of defendant company would move them onto the tracks of defendant, where they were unloaded and the wood stacked between these tracks of defendant company, from which point the railroad crew afterwards and as required would load the wood onto its own cars and haul same to points accessible and convenient to the chipper-house, where the machines of defendant company cut the wood up. Where the tracks permitted, by reason of being on an incline, the shifting of cars was sometimes done by hand, and especially was this true in pushing the cars from the chipper-house track into the chipper-house yard and up to the machines. That the cars of defendant were smaller than the railroad cars, being something like 18 feet in length, and not so high, and were without automatic couplers, the old style link and pin being used for the purpose. That plaintiff was an employee of defendant company, whose duties called on him to work at the chipper machines, and in the course and scope of his duties he was called on frequently to move these cars and stop them and couple and uncouple same; and on the occasion referred to, to-wit, 2 May, 1904, in the course of his duty he was on a car which he had started and was letting it roll down towards another car to which it was to be coupled. While plaintiff was so engaged, and as he was about to couple HAIRSTON V. LEATHER Co. the car he was on to another, the pin which had been prepared failed to drop properly so as to effect the coupling, but fell to the ground between the cars. That plaintiff, remaining on the car, got down on his all-fours and was reaching down to pick up the pin, when a co-employee on the third car allowed same to roll down against the car he was on, jolting plaintiff's hand between the draw-heads, where it was mashed and severely injured. That this employee, one Will Caldwell, could have seen how plaintiff was engaged at the time, there being no obstruction, and plaintiff being in full view. Plaintiff claimed that on these facts, if established, defendant was guilty of actionable negligence: (1) In not providing the cars with coupling devices, as required by law. (2) In negligently causing the violent collision between the cars as above set forth, while plaintiff was in plain view of those in control of the car which ran into the one plaintiff was on. Admitting that the cars were without automatic couplers, defendant denied that there was any negligence on its own part, and claimed that it was no part of plaintiff's duties either to couple or uncouple cars, but that his duty was to work at the chipper machines, and alleged contributory negligence on part of plaintiff. Further, that plaintiff had assumed the risk of the injury which occurred to him, and that he was injured by the negligence of a fellow-servant in charge of the rear car, etc. Defendant offered testimony to sustain his positions, and tendered issues as follows: 1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? 2. Was the plaintiff, at the time he received the alleged injuries, acting in disobedience of the orders of the defendant given to him by his foreman, J. Y. Allison? |