motion to that effect, the return on the summons as "served" should be stricken out.

Appeal dismissed.

PROCESS-EXEMPTION FROM SERVICE-NONRESIDENTS. -A nonresident suitor coming into this state to attend the trial of his case is privileged from the service of civil process while coming to, attending upon, and returning from the court trying the cause: Fisk v. Westover, 4 S. Dak. 233; 46 Am. St. Rep. 780, and note. This privilege is a very ancient one, and extends to every proceeding of a judicial nature taking place in or emanating from, a duly constituted tribunal which directly relates to the trial of the issue involved: Parker v. Marco, 136 N. Y. 585; 32 Am. St. Rep. 770, and note. It extends to witnesses as well as parties, to the service of summons as well as to arrest: Cameron v. Roberts, 87 Wis. 291; 41 Am. St. Rep. 43, and note. Service of process in violation of this privilege should be vacated on motion: Parker v. Marco, 136 N. Y. 585; 32 Am. St. Rep. 770. See Malloy v. Brewer, 7 S. Dak. 587; 58 Am. St. Rep. 856, and note.

APPEAL-WHAT DETERMINATIONS ARE REVIEWABLE.Whether an order is appealable or not depends more upon what it purports to determine than upon its actual effect. The general rule is, that an appeal lies from an order only when it determines the action or affects some substantial right of the appellant: Extended note to Davie v. Davie, 20 Am. St. Rep. 173. Thus a refusal to order a nonsuit is not reviewable in the supreme court: Mobley v. Bruner, 59 Pa. St. 481; 98 Am. Dec. 360; United States Tel. Co. v. Wenger, 55 Pa. St. 262; 93 Am. Dec. 751.

GREENLEE v. SOUTHERN RAILWAY COMPANY.

[122 NORTH CAROLINA, 977.]

SELF-COUPLERS

RAILROAD COMPANIES NEGLIGENCE.-The failure of a railway company to equip its freight-cars with self-coupling devices is negligence per se, for which it is liable in damages to an employé who receives an injury while coupling cars by hand, whether he is guilty of contributory negligence or not. RAILROAD COMPANIES — SELF-COUPLERS – NEGLIGENCE-ASSUMPTION OF RISK.-Although an employé remains in the service of a railway company, knowing that its cars are not equipped with self-couplers, as required by law, it is liable to him for an injury received while coupling its cars by hand.

MASTER AND SERVANT-ASSUMPTION OF RISK.-The doctrine of assumption of risk has no application where the law requires the adoption of new devices to save life or limb, and the employé, either ignorant of that fact or expecting daily compliance with the law, continues in the service with the appliances formerly in use.

Action to recover damages for personal injury caused by negligence. The plaintiff was employed in the yard of the defendant company to shift and couple cars, and was injured while coupling its cars by hand. These cars were not equipped with

self-couplers, but the plaintiff had been instructed when employed not to couple cars by hand, but to use a stick. Plaintiff recovered a verdict and judgment for fifteen hundred dollars, and the defendant company appealed.

G. F. Bason, C. Price, and A. B. Andrews, Jr., for the appellant,

E. J. Justice and J. T. Perkins, for the appellee.

978 CLARK, J. In any aspect of this case the defendant is liable, whether the plaintiff was or was not guilty of contributory negligence for the negligence of the defendant in not having self-couplers, and in sending a man to couple cars at all was a continuing negligence which existed subsequent to the contributory negligence, if there had been any, of the plaintiff and was the proximate cause, the causa causans, of the injury.

Six years ago (1892), in Mason v. Richmond etc. R. R. Co., 111 N. C. 482, 487, 32 Am. St. Rep. 814, the court, in considering "whether the defendant company was negligent in failing to provide what is known as the 'Janney,' or some other improved coupler which would obviate the necessity under any circumstances of going between the ends of cars in order to fasten one to another," said: "We think that the time 979 has arrived when railroad companies should be required to attach such couplers

on all passenger-cars. .... and the new couplers have now become so cheap, as compared to the value of the lives and limbs of servants and passengers, that it is not unreasonable to require that they provide them on peril of answering for any damage which might have been obviated by their use." While the court declined on account of the expense to hold that the same was true at that time as to freight-cars, it added: "Doubtless the day will soon come" when it would be negligence not to attach them to freight as well as passenger-cars. Congress so thought, and in 1893 passed an act (27 U. S. Stats. at Large, 531) requiring self-couplers and air-brakes to be placed on all cars, freight as well as passenger, by January 1, 1898, and this had been complied with as to "over sixty per cent of the freight-cars" besides nearly all passenger-cars, operating in interstate commerce, by that date. In Witsell v. West Asheville etc. Ry. Co., 120 N. C. 557, the above citation from Mason v. Richmond etc. R. R. Co., 111 N. C. 482, 32 Am. St. Rep. 814, was approved, and the court held that, while it was not negligence to fail to provide the latest improved appliances, a railroad company was liable for

any injury caused by the failure to use approved appliances that are in general use.

The railroad companies have of late procured from the interstate commerce commission an extension, till January 1, 1900, of the time by which self-couplers must be placed upon all freightcars used in interstate service, but this was for their accommodation, and did not and could not relieve them from the legal liability incurred for injuries caused by their failure to provide "suitable appliances in general use" where the use of such would have prevented the injury. It only relieved them from the penalty provided in the act of Congress.

980 The eleventh annual report (1897) of the interstate commerce commission, issued by authority of the United States government and based upon the reports of the railroad companies themselves, shows (page 80) that of railroad employés (leaving out passengers altogether) 1,861 were killed and 29,969 were wounded in the year ending June 30, 1896, being greater loss than in many a battle of historic importance. Of the trainmen, this report (page 130) shows that nearly one in nine had been killed or wounded that year-a total of over 17,000. Of these casualties it is officially stated 229 were killed and 8,457 were wounded in this single particular of coupling and uncoupling cars. As these figures are reported by the corporations themselves, it is not probable that they are overstated. If the railroads not reporting to the interstate commerce commission (because not engaged in interstate carrying) should be added, the figures of killed and wounded from this cause would doubtless be largely increased. By these figures, for the last year reported, nearly 9,000 men had been killed and wounded in coupling and uncoupling cars. As the corporations, on their own motion or under compulsion of Congressional action and judicial decision, have adopted self-couplers on the passenger-cars and on "over sixty per cent" of the freight-cars, it will be seen how many thousands of lives and bodies have been saved thereby, but that still nearly 9,000 men should in one year be killed or wounded "coupling and uncoupling cars" on the freight-cars which, up to June 30, 1896, still lacked self-couplers, is the highest proof of the duty of the courts to enforce liability for failure to provide self-couplers in every case where an injury occurs from that cause. That nearly 9,000 men should still be killed and wounded in one 981 year for failure to furnish appliances which are so widely in use and which would entirely prevent such accidents, points out the duty of the courts.

In Witsell v. West Asheville etc. Ry. Co., 120 N. C. 562, this

court says: "If an appliance is such that the railroads should have it, the poverty of the company is no sufficient excuse for not having it." But in fact this defendant reports that it has issued bonds and stocks to the amount of $76,557 per mile (N. C. R. R. Com. Report, 1896, 246). This is presumed to have been paid in by its issuing them, and hence it should be able to furnish appliances which will protect its employés from such injuries as this, and should be held liable for failure to do so, especially as the interstate commerce commission report shows that the self-couplers can be put or at the cost of $18 per car.

In a large majority of the states, as well as by the federal government, railroad commissions have been created to supervise and regulate the charges and the conduct of these corporations. The courts will be very derelict in their duty if they do not enforce justice in favor of employés as well as the public. Six years ago this court said it would soon be negligence per se whenever an accident happened for lack of a self-coupler. Congress has enacted that self-couplers should be used. For their lack this plaintiff was injured. It is true the defendant replies that the plaintiff remained in its service, knowing it did not have selfcouplers. 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 employés to continue this annual sacrifice of thousands of men.

But such is not the doctrine of "assumption of risk.” That is a more reasonable doctrine and is merely that 982 when a particular machine is defective or injured, and the employé, 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 employé, either ignorant of that fact or expecting daily compliance with the law, continues in service with the appliances formerly in use.

The defendant, after notice of six years from this court, and with notice of the act of Congress, and also from the general adoption of self-couplers that it should use them, was guilty of negligence in failing to do so. The injury to the plaintiff could not have occurred save for the failure of the defendant to comply with its duty in this regard, and the court below should have held it liable to the plaintiff upon the defendant's own evidence. Hence, if there was error, which we do not admit, it was neces sarily harmless error. There was plainly no error upon the issue as to the amount of damages.

Affirmed.

AM.ST. REP., VOL. LXV.-47

MR. CHIEF JUSTICE FAIRCLOTH and Mr. Justice Finches dissented, on the ground that plaintiff was guilty of contributory negligence which prevented him from recovering, and that "by accepting service under the defendant to work in its yard in shifting and coupling cars, he accepted all the ordinary risks of this service, without the special instruction not to couple with his hands."

Railroads-Duty to Furnish Improved Appliances.

The general principles of law deducible from the authorities relative to the duty of a railroad company or master to furnish employés with suitable appliances with which to perform their work,' are well stated by Mr. Justice Lamar in delivering the opnion of the court in Washington etc. R. R. Co. v. McDade, 135 U. S. 554-570, where it is said that "neither individuals nor corporations are bound, as employers, to insure the absolute safety of the machinery or mechanical appliances which they provide for the use of their employés. Nor are they bound to supply the best and safest or newest of those appliances for the purpose of securing the safety of those who are thus employed. They are, however, bound to use reasonable care and prudence for the safety of those in their service by providing them with machinery reasonably safe and suitable for the use of the latter.

"If the master fails in this duty of precaution and care, he is responsible for any injury which may happen through a defect of machin ery which was, or ought to have been, known to him, and was unknown to the employé or servant. But if the employé knew of the defect in the machinery from which the injury happened, and yet remained in the service and continued to use the machinery without giving any notice thereof to the employer, he must be deemed to have assumed the risk of all danger reasonably to be apprehended from such use and is entitled to no recovery."

The test of liability of an employer to an employé for injury received in the course of the employment is not danger but negligence; and as to machinery and appliances, the employer is bound to furnish such only as are of the character ordinarily used and of reasonable safety, and the former is the conclusive test of the latter: Kehler v. Schwenk, 144 Pa. St. 348; 27 Am. St. Rep. 633; Reese v. Hershey, 163 Pa. St. 253; 43 Am. St. Rep. 795.

As a general rule, where an appliance, not obviously dangerous, has been in daily use for years, and has uniformly proved adequate, safe and convenient, it may be continued without the imputation of negligence; Lafflin v. Buffalo etc. R. R. Co., 106 N. Y. 136; 60 Am. Rep. 433. A master is not bound to furnish the best known appliances for the work in which his servant is engaged, but only such as are reasonably fit and safe. He satisfies the requirements of the law if, in the selection of machinery and appliances, he uses that degree of care which a man of ordinary prudence would use, having regard to his own safety in selecting them for his individual use.

*RFFERENCE TO MONOGRAPHIC NOTES.

Safe machinery and appliances, duty of master to furnish: 92 Am. Dec. 213-221; 64 Am. Rep. 726, 730; 59 Am. Rep. 75-79.