The Wabash And Western Railway Company v. Morgan

• Decision Date: 13 October 1892
• Docket Number: 15,392
• Citation: 32 N.E. 85,132 Ind. 444
• Parties: The Wabash and Western Railway Company v. Morgan
• Court: Indiana Supreme Court

32 N.E. 85

132 Ind. 444

The Wabash and Western Railway Company v. Morgan

No. 15,392

Supreme Court of Indiana

October 13, 1892

Original Opinion of June 16, 1892, Reported at: 132 Ind. 430.

OPINION

Elliott, J.

In the brief of appellant's counsel on the petition for a rehearing, it is argued with ability and earnestness that this court erred in not reversing the judgment because of the error of the trial court in instructing the jury as to the degree of care required of an employer in providing his employees with safe appliances.

We fully agree with counsel that an employer is not bound to exercise extraordinary care to provide safe appliances. The care required of him is ordinary care, but the dangers of the service of which the employer has knowledge, or of which he is bound to take notice, are always to be considered in determining what constitutes ordinary care. There is no exact test to which cases can be indiscriminately subjected, nor is there any rigid standard by which all cases can be measured. What would be ordinary care in one class of cases might be far otherwise in other and different classes.

The fourteenth instruction, against which the attack is particularly directed, contains some statements which can not, if considered apart from other instructions, be deemed accurate. The instruction reads thus "Railroad employees are presumed to understand the nature and hazard of the employment when they engage in the service, and they assume all ordinary risks and obvious perils incident thereto. Such risks are presumably within the employee's contract of service. This does not mean however, that the latter may not repose confidence in the prudence and caution of the employer, and rest on the presumption that he has also discharged his duty by supplying machinery free from latent defects which expose the employee to extraordinary and hidden perils. While the employer may expect that an employee will be vigilant to observe, and that he will be on the alert to avoid all known and obvious perils, even though they may arise from defective tools and machinery, yet the latter is not bound to search for defects or inspect the appliances furnished him to see whether or not there are latent imperfections in and about them which render their use more hazardous. These are duties of the master, and unless the defects are such as to be obvious to any one giving attention to the duties of the occasion the employee has a right to assume that the employer had performed his duty in respect to implements and machinery furnished."

An analysis of this instruction shows that it contains general statements that are unquestionably correct, and these statements give tone and effect to the specific instruction when considered, as it must be, in connection with the series of instructions of which it forms a part. It is true, in a general sense, that a duty rests upon the employer "to see whether there are latent defects" in the appliances with which he requires the employee to make use of in the line of his service. The employer is bound to make reasonable inspection of the appliances furnished the employees to discover latent defects, and a neglect to make such an inspection is a culpable breach of duty. Northern Pacific R. R. Co. v. Herbert, 116 U.S. 642, 29 L.Ed 755, 6 S.Ct. 590; Matchett v. Cincinnati etc., R. W. Co., ante, p. 334; Ohio, etc., R. W. Co. v. Pearcy, 128 Ind. 197, 27 N.E. 479; Cincinnati, etc., R. R. Co. v. McMullen, 117 Ind. 439, 20 N.E. 287. This duty to inspect implies, of course, that the employer will not subject the employee to concealed defects which an inspection conducted with ordinary care would have revealed. Obvious defects, open to ordinary careful observation, are perils of the service, but latent defects, or defects not discoverable by the exercise of reasonable care, are not perils incident to the service, and hence are not assumed by the employee. Rogers v. Leyden, 127 Ind. 50, 26 N.E. 210, and cases cited; Ohio, etc., R. W. Co. v. Pearcy, supra; Matchett v. Cincinnati, etc., R. W. Co., supra. It was, therefore, not error to direct the jury that the employer's duty was to furnish appliances free from latent defects, nor was it error to direct them that the duty to search for such defects did not rest upon the employee. To affirm that such a duty rests upon the employee would, it is evident, require the employee to perform the duty of inspection, and to affirm this would involve a denial of the rule that the duty of inspection rests upon the employer. The inaccuracy in the instruction, in so far as...