CO UR TS AND FA CTORY LEGISLA TION 403
In Greenlee vs. Southern Railway Co. 1 plaintiff was injured by reason of the failure of the railroad company defendant to comply with the federal law requiring self-couplers and air- brakes to be placed on all freight and passenger cars by January i, 1898. Plaintiff's injuries were due to a defective brake. Plaintiff's recovery, at trial, was affirmed on appeal, the court using the following language :
Six years ago this court said it would soon be negligence per se whenever an action happened for lack of a self-coupler. Congress has enacted that self-couplers should be used. For this lack this plaintiff was injured. It is true the defendant replies that the plaintiff remained in its service knowing it did not have self-couplers. If that were a defense, no railroad company would ever be liable for failure to put in life-saving devices, and the need of bread would force employes to continue the annual sacrifice of thousands of men. But this is not the doctrine of "assumption of risk." That is a more reasonable doctrine, and is merely that when a particular machine is defective or injured, and the employe, knowing it, continues to use it, he assumes the risk. That doctrine has no application where the law requires the adoption of new devices to save life or limb (as self-couplers), and the employ^, either ignorant of that fact or expecting daily compliance with the law, continues in service with the appliances formerly in use.
Two cases illustrative of the diversity of opinion among the courts on this matter of public policy involve statutes requiring railroad companies to fill or block frogs and guard-rails on their tracks. In both cases the actions were for recovery of damages for personal injuries from such unblocked frogs received by employes who continued in the railroad service with knowledge that the condition of the rails was contrary to the statute and dangerous. In one (Narramore vs. C. C. C. & St. L. R. R. Co., 96 Fed. Rep. 298, decided be the United States circuit court of appeals), in the opinion of Judge Taft, the learned justice remarks: "In the absence of statute, and upon common-law principles, we have no doubt that in this case the plaintiff would be held to have assumed the risk of the absence of blocks in guard-rails and switches by defendant." The court held, however, that the plaintiff's rights under the statute could not be waived by con- tinuance :
The only ground for passing such a statute is found in the inequality of terms upon which the railway company and its servants deal in regard to 1 30 S. E. Reporter (N. C.), 115.
