American Locomotive Co. v. Thornton

• Decision Date: 01 April 1919
• Docket Number: 1671.
• Parties: AMERICAN LOCOMOTIVE CO. v. THORNTON.
• Court: U.S. Court of Appeals — Fourth Circuit

259 F. 405

AMERICAN LOCOMOTIVE CO. v. THORNTON.

No. 1671.

United States Court of Appeals, Fourth Circuit.

April 1, 1919

[Copyrighted Material Omitted]

The instructions mentioned in the opinion are as follows:

'(1) The court instructs the jury that it was the duty of the defendant company to use and exercise reasonable and ordinary care (1) to provide and maintain a reasonably safe place for the plaintiff to do the work which he was employed by the defendant to do; and (2) to exercise a like degree of care and diligence to furnish and maintain for its employes reasonably suitable, sound and safe machines appliances, bits, and tools such as are reasonably calculated to provide for their safety, and to this end to inspect, test, and examine the same, from time to time, for the purpose of discovering any bad order, condition, or defect in them, and to repair the same so as to keep and maintain them in reasonably safe order and condition for use by the defendant's employes; and (3) to exercise a like degree of care to employ competent and careful men and employes to do its said work of inspecting, testing, repairing, using, and operating its said machines, appliances, bits, and tools in making shells, and near to which plaintiff was employed to work; and (4) to exercise a like degree of care to see that its said inspectors and repairmen did their said work in a reasonably careful and proper manner and way, and that these duties could not be assigned or delegated by the defendant to any of its employes so as to exempt defendant from liability for damages caused by the failure to perform said duties; and if the jury believe from the evidence in this case that the defendant company failed to exercise ordinary and reasonable care in the performance of any one or all of the aforesaid duties, and that such failure was the cause of the injury to the plaintiff, without negligence on his part, then the jury will find for the plaintiff.

'(2) The court further instructs the jury that the defendant is charged with notice not only with what it knew, but also of what it ought to have known by the exercise of ordinary care, foresight, and precaution on its part to inspect, examine, and discover the condition of the machine referred to in the declaration; and if the jury believe from the evidence that the said machine was in bad order and condition before and at the time Thornton was injured, and that the said defendant knew, or could have known, of its said bad order or dangerous condition by the exercise of ordinary and reasonable care on its part, in time to have repaired the same or warned the plaintiff thereof and prevented the injury, and that it failed so to do, and that such failure was the proximate cause of the plaintiff's injury, without negligence on his part, then the defendant is liable.

'(3) The court instructs the jury that if they believe from the evidence in this case that the defendant, in the exercise of ordinary care, ought to have put a guard or shield on its machine over the tool that broke and struck and injured Thornton, and that it was practicable so to have done to furnish reasonable and efficient protection to prevent it, in the event it broke, from being hurled against and injuring Thornton and its other employes employed and directed by the defendant to work around or near to said machine while said machine was being operated, and that defendant failed to do so, and that by reason of such failure the said tool, without negligence on Thornton's part, broke, struck and injured Thornton, while he was in the discharge of his duties and exercising ordinary care, then they should find for the plaintiff, unless they believe from the evidence that the dangerous condition which caused said tool to break was known and appreciated by Thornton, and was so great and imminent as to deter an ordinary prudent person from accepting the employment and doing the work Thornton was doing at the time he was injured.

'(4) The court instructs the jury that if they believe from the evidence that the machine upon which the tool broke and injured Thornton was before and at the time of the injury being operated by an employe of the defendant other than Thornton, and that the tool broke because the machine, through the negligence of the defendant, was in bad order and condition, and that it was not Thornton's duty to inspect and repair said machine, and that he did not know, and in the exercise of ordinary care would not have known, that it was in such bad order until he was informed thereof by the operator of said machine while he was passing the machine just about or at the time the tool broke and injured him while he was exercising ordinary care and was in the discharge of his duties as an employe of the defendant and going by or passing said machine, then he is entitled to recover. This instruction is subject to the qualification set forth in instruction 3 given herein.

'(5) The jury are instructed that when an employe enters the service of the master he assumes all risk naturally incident to his employment, but the law does not mean by this accidents and injuries occurring from the failure of the master to use ordinary care and diligence in providing reasonably safe place and reasonably safe machinery and instruments for the use of the servant, and to use like care and diligence in providing such appliances as are reasonably calculated to provide for his safety, and the servant entering such service has the right to presume that the master has discharged his duty in this respect; and if an injury is occasioned to the servant because of the failure of the master to use ordinary care to provide reasonably safe and suitable appliances for his safety while in the discharge of his duties, and that such negligence on the part of the master, the plaintiff being himself in the exercise of proper care, was the proximate cause of the injury, the master is liable to the servant for damages, unless the plaintiff knew, or in the exercise of ordinary care ought to have known, of said defect in time to have avoided the injury.

'(6) The court instructs the jury that when an employee knows that the place in which he works is unsafe, and notifies the employer or his agent of such fact, and the employer or his agents promise to remedy such conditions, then the employe does not assume the risk of such unsafe place during the time reasonably required for the performance of the employer's promise, unless the danger is so imminent that no ordinarily prudent man would under the circumstances rely upon such promise and continue to do the work.

'(7) The court instructs the jury that if a servant was injured by the failure of the master to perform any of the personal and nonassignable duties which the law imposes upon him, as defined in instruction No. 1, such as exercising ordinary care, foresight, and precaution to provide and maintain reasonably safe machinery and appliances, etc., and such failure proximately contributed to cause the servant's injury, it is no defense for the master that the negligence of a fellow servant also contributed to or concurred in producing the injury, as in such case the master is liable as though he only was at fault.'

'I-2. The court instructs the jury that if they believe from the evidence that the machine in use in this case was defective, nevertheless, if they further believe that the witness Ragland, who had been operating said machine, was told by Thornton, the plaintiff, not to operate it until it had been repaired, and that nevertheless Ragland did operate it, and that the accident and injury to the plaintiff resulted from this operation of the machine, the negligence which caused the accident was that of a fellow servant of the plaintiff, and they must find for the defendant.

'L-2. The court instructs the jury that it is their duty to try this case without being influenced by sympathy or the mere fact that the plaintiff was injured. You are under the solemn obligation of an oath to decide according to the law and the facts; and unless there is proof of negligence on the part of the defendant, and no proof of contributory negligence on the part of the plaintiff, or of negligence on the part of a fellow servant, such as to relieve the defendant of liability and as pointed out in other instructions, the plaintiff is not entitled to recover.

'M-2. The court instructs the jury that an employer may, by general rules, impose upon his employe the duty to supervise the inspection of the machinery under his direction, and of seeing to it that said machinery is kept in repair; and if the jury believe from the evidence that the machine in this case was defective or in need of repair, yet if they further believe that it was the duty of the plaintiff as foreman to see to it that the operators under him kept their machines running and in condition for work, and reported breakdowns or defects to the repair force or to himself, and that they reported to him any failure of the repair force to act within a reasonable time, and that, if the plaintiff had performed his duty in this regard, he would have known of the condition of the machine in time to avoid the accident, they must find for the defendant.' Murray M. McGuire, of Richmond, Va. (McGuire, Riely, Bryan & Eggleston, of Richmond, Va., on the brief), for plaintiff in error.

M. J. Fulton and R. E. Byrd, both of Richmond, Va., for defendant in error.

Before PRITCHARD and KNAPP, Circuit Judges, and CONNOR, District judge.

PRITCHARD Circuit Judge.

This was a civil action instituted in the United States District Court for the Eastern District of Virginia, by Moses L Thornton (who will be referred to as the plaintiff, such being the position he occupied in the court below),...