Norfolk & W. R. Co v. Jackson's Adm'r

• Decision Date: 22 November 1888
• Court: Virginia Supreme Court
• Parties: Norfolk & W. R. Co. v. Jackson's Adm'r.

8 S.E. 370

(85 Va. 489)

Norfolk & W. R. Co.

v.Jackson's Adm'r.

Supreme Court of Appeals of Virginia

November 22, 1888

1. Master and Servant—Injury to Servant—Dangerous Appliances.

Plaintiff's intestate and a fellow-servant, employes of defendant railroad company, in obeying an order, adjusted a "push-pole" from the corner of a tender to the corner of a car on a parallel track, for the purpose of pushing the car, but, as the engine started, one end of the pole slipped, throwing intestate under the wheels, whereby he was killed. Held, that plaintiff could not recover on the ground that defendant was negligent in not supplying the corners of the tender and car with " sockets" in which to place the pole, when plaintiff's evidence shows that such "sockets" are a new invention, not in common use; that their absence was obvious to intestate; aud that he had been in defendant's employ in the same capacity several years, —the presumption being that he knew that the "sockets" were not used by defendant when he entered its service. ¹

2. Negligence—Pleading—Use op Ordinary Care.

In such case, a count in the declaration that defendant failed to provide "suitable, convenient, and safe appliances, by reason of which said careless acts " the deceased was injured, is demurrable, because not averring that defendant failed to use ordinary care in providing safe machinery, nor that he knew, or ought to have known, of the alleged defects, or that deceased did not know of them.

3. Same—Knowledge of Defects.

A count alleging that the "push-pole was not made of strong and suitable material, " but not averring that the defects were known, or ought to have been known, to defendant, is demurrable.

4. Same.

A count averring that defendant was bound to furnish a "push-pole, constructed in the best and safest manner, and of the best material, " is faulty; it being defendant's duty only to use "ordinary care" in providing suitable appliances.

Lacy and Richardson, JJ., dissenting.

On rehearing. For opinion on first hearing, see 6 S. E. Rep. 220.

G. S. Bernard, R. H. Jones, and W. J. Robertson, for plaintiff in error. W. H. Mann and Alex. Hamilton, for defendant in error.

Lewis, P., (absent at first hearing.) This was an action in the circuit court of Dinwiddie county to recover damages for the alleged negligent killing of the plaintiff's intestate, who, when he was killed, was in the employ of the defendant company, the plaintiff in error here, as a brakeman on a freight train. There was a demurrer to the declaration, and to each count thereof, but the demurrer was overruled; and, the jury having returned a verdict for the plaintiff for $5,000 damages, the court gave judgment on the verdict, whereupon the defendant obtained a writ of error and supersedeas. The case was first argued here before a court composed of four judges only, and the opinion of the court affirming the judgment of the court below may be found in 6 S. E. Rep. 220. Subsequently a rehearing of the case was granted, after which an argument was had before a full court, upon all the points arising in the case. The court has carefully considered the case and the arguments of counsel, and, while a majority of the judges are of opinion that, upon one point arising upon the demurrer to the declaration, the judgment must be reversed, there is a diversity of views upon other points upon which they havebeen unable to agree. I will therefore give the reasons upon which my own conclusions are based.

It is admitted that the general and well-established rule is that he who enters the service of another, for the performance of specified duties, for compensation, takes upon himself the natural and ordinary risks incident to the performance of such duties. The law presumes that the employe voluntarily assumes these risks when he enters the service, and that his compensation is adjusted accordingly. Hence "he cannot, in reason, complain if he suffers from a risk which he has voluntarily assumed, and for the assumption of which he is paid. " Railroad Co. v. Ross, 112 IT. S. 377, 5 Sup. Ct. Rep. 184. Nor, on the other hand, is it disputed that the rule does not relieve the employer of the obligation to exercise ordinary care in supplying and maintaining suitable and safe instrumentalities for the performance of the work required. The employe has the right to count on this duty, and he is not required to assume the risks of the negligence of the employer, or, what is the same thing, of those who stand in his place and represent him. The contract of service implies, in the absence of a stipulation to the contrary, that the employer will make adequate provision that no danger, other than the perils naturally incident to the business, shall inure to the employe in the course of the employment; and, if he fails in the performance of his duty in this particular, he is as liable to the employe as he would be to a stranger. But the obligation extends no further than to exercise ordinary care. Wood, Mast. & Serv. § 345; Improvement Co. v. Smith's Adm'r, 7 S. E. Rep. 365, (recently decided at Wytheville.) The employer is not the guarantor of the employe's safety, and hence he is not bound, at his peril, to provide only the best and safest instrumentalities, and to use the best methods for their operation; nor does he impliedly warrant the fitness and soundness of his machinery and appliances. 2 Ror. R. R. 1212, note. If, in the exercise of ordinary care, he furnishes such as are reasonably safe and adequate, and keeps them so, that is all the employe can expect. The latter, likewise, must use ordinary care to avoid injuries to himself, and to entitle him to recover for defects in the appliances of the business he is ordinarily required to show—First, that the appliance in question was defective; secondly, that the employer knew, or ought to have known, of the defect; and, thirdly, that the employe did not know of it, and that the injury complained of resulted in spite of ordinary care on his part; and the reason why he must establish the last, as well as the first two, of these propositions, is that the burden is on him to show that his case comes within an exception to the general rule above mentioned, —that is to say, that "the injury did not arise from an obvious defect in the instrumentalities of the business, or from a hazard incident to the business, but from a cause * * * which strips his act of the imputation of negligence, and overcomes the presumption that he voluntarily took the risk upon himself. " Wood, Mast. & Serv. §§ 382, 414. The employer, however, is not bound to adopt every new improvement in appliance, nor is he liable to the employe for an injury on the ground merely that the injury would not have resulted if such new improvements had been adopted, provided the employe be not deceived as to the degree of danger that he incurs. 3 Wood, Ry. Law, 8 378; Darracutts v. Railroad Co., 2 S. E. Rep. 311.

It is also well settled that if an employe chooses to accept an employment which requires him to operate machinery defective from its construction, or from the want of repair, and with knowledge of the facts enters the service, he cannot hold the employer liable for an injury within the scope of the danger which both the contracting parties contemplated as incident to the employment. And so, also, where the employe, after he enters the service, has notice of defects in the machinery he is required to operate, and thereafter continues in the service without any promise on the part of the employer to render the same less hazardous, he assumes these extra risks, and must bearthe consequences; and the law presumes notice of those perils which are open and obvious, and which the employer has the opportunity to ascertain. Whart. Neg. § 206; Stafford v. Railroad Co., 114 Ill. 244, 2 N. E. Rep. 185.

These principles are well illustrated by the case of Dynen v. Leach, 40 Eng. Law & Eq. 491. That was an action brought under Lord Campbell's act, to recover damages for the alleged negligent killing of the plaintiff's intestate. The defendant was a sugar-refiner, and had employed the deceased as a laborer. It was a part of the latter's duty to fill sugar-moulds, and to hoist them up to higher floors in the warehouse by means of machinery. The usual mode of attaching the moulds to the machine was by placing them in a sort of net-bag, which effectually prevented any accident; and this was the mode adopted by the defendant, until, from motives of economy, he substituted a kind of clip, which laid hold of the rim of the mould. The deceased, on the occasion in question, had himself filled the mould, and fastened it to the clip, but when it was being raised the clip, by some jerk, slipped off the mould, which fell on his head, and killed him. Upon these facts the plaintiff was nonsuited, and this ruling was unanimously affirmed by the court of exchequer. Pollock, C. B., said: "A servant cannot continue to use a machine he knows to be dangerous, at the risk of his employer. " Bramwell, B., was of the same opinion. He said: "There is nothing legally wrongful in the use by an employer of works or machinery more or less dangerous to his workmen, or less safe than others that might be adopted. It may be inhuman to carry on his works, so as to expose his workmen to peril of their lives, but it does not create a right of action for an injury which it may occasion, when, as in this case, the workman has known all the facts, and is as well acquainted as the master with the nature of the machinery, and voluntarily uses it. " Channell, B., concurred. He said: "If I were to speculate on the cause of the accident, I should be disposed to think that it was the careless fixing of the clip by the...