Bethlehem Iron Co. v. Weiss

• Citation: 100 F. 45
• Decision Date: 16 February 1900
• Docket Number: 79.
• Parties: BETHLEHEM IRON CO. v. WEISS.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

100 F. 45

BETHLEHEM IRON CO. v. WEISS.

No. 79.

United States Court of Appeals, Third Circuit.

February 16, 1900

Frank P. Prichard and John G. Johnson, for plaintiff in error.

George Demming and M. H. Todd for defendant in error.

Before ACHESON and GRAY, Circuit Judges, and KIRKPATRICK, District judge.

GRAY Circuit Judge.

This is an action at law by John Weiss against the Bethlehem Iron Company to recover damages for injuries sustained by plaintiff while in defendant's employ. The statement of claim averred that on April 27, 1896, plaintiff was employed by defendant to work as a laborer in defendant's mill that on April 30, 1896, he was, while in the proper and careful performance of his duties, run over by a car attached to an engine belonging to defendant; and that this accident was due to the fact that defendant put plaintiff to work in a dangerous place, neglected to warn him of the peculiar dangers of the work, and employed incompetent and careless fellow workmen. On the trial it appeared that plaintiff was an adult laborer, 31 years of age, who came to this country from Austria in October, 1895, and, after working in a machine shop and at a metal furnace, applied in April 1896, to the Bethlehem Iron Company for work. He was given employment at wheeling a wheelbarrow at night, to carry out old loam and bricks and bring in new loam and bricks. Plaintiff spoke German only, but was shown what he was to do by a fellow workman who also spoke German. The portion of the works of the Bethlehem Iron Company in which he was employed consisted of a large building on two sides of a yard. The work which plaintiff was required to do took him along a wheelbarrow path or runway, which crossed a narrow-gauge railway track, upon which ran a dinkey engine and small cars used in transporting molds from and into the mill. This track emerged from the mill through a doorway 10 feet 8 inches wide, and across the barrow path, the edge of which was 5 feet 7 inches from the wall of the building. Inside of the doorway the track made a sharp curve, so that a person standing in the middle of the track, at the crossing, could only see an approaching car or engine when it was 27 feet away, and a person standing a foot away from the track before crossing it, could only see an approaching car or engine when it was 19 feet away. There were other tracks of a similar character running into and from the mill, upon which small dinkey engines were constantly running. It is in testimony that an engine, or engine and cars, emerged from this doorway, and across this barrow path, about 40 times during a working night, of 12 hours, or between 3 and 4 times an hour. It was also in testimony that the same rules, customs, and conditions in regard to this doorway had existed for 16 years previous to the accident, and that during that time the wheelbarrows pushed by experienced men over this crossing were frequently struck by the dinkeys, the men themselves only escaping by jumping back. There was some testimony going to show that it was the custom to warn new workmen of the dangers incident to these crossings, and one workman testified that he told the plaintiff to be careful when he crossed the track, or to be careful about the engine. The plaintiff testified that he wheeled his barrow along this path and across this track about six times each night, both ways. The accident happened on the fourth night of his employment, April 30, 1896, about; ':25 p.m. Plaintiff also testified that only once before, during the three previous nights, had his duties taken him by this doorway when the dinkey or engine was coming through. On that particular occasion he testifies that, as he was approaching the track with his barrow, a boy came out through the doorway and said, 'Come on,' whereupon the engine, which had apparently been standing inside the doorway, came out; that the boy said to him at the same time, 'Look out, Hunk.' The testimony showed that ordinarily when the engine was coming out it would whistle two long and two short blows for the doorway, but there was no rule requiring it to stop before emerging, or obliging any employe to precede it through the doorway. Another workman testified that there were certain occasions (that is, whenever the dinkey got the molds from the foundry inside the mill) when what was testified to by the plaintiff might occur. It was also in testimony that there were two other engines employed in the mill in the same manner as the one concerned in the accident, and that they were constantly running in and out, and that there was constant whistling going on,-- four blows for another engine, three blows for a curve, four blows for a heat,-- and that two long and two short blows meant other things than passing through the doorway, and that these blows were often given near the doorway. It was also in testimony, by a workman employed in wheeling across this track, that it required about two months for a new workman to learn to distinguish these different whistles. It was in evidence that the steam sometimes escaped through the open doorway from the mill into the yard, and that also a large exhaust steam pipe from a stationary engine inside the mill came through the mill wall just at the doorway, and frequently emitted large quantities of steam, which collected right at the crossing. After the accident this pipe was taken from the wall and extended up through the roof. The plaintiff testified that in addition to its being a dark night, in which he could see but a very short distance ahead of him, steam was coming out of this exhaust pipe, and hung in clouds over the crossing, and prevented his seeing anything coming through the doorway; that just before the accident he looked and listened, but heard no whistle, and, with the crossing so obscured by the steam, he pushed his barrow onto the track, where a car, pushed by a dinkey engine, suddenly emerging from the doorway, struck him and caused the injuries complained of. The engineer of the dinkey testifies that he gave the accustomed signal with the whistle, and also that he could not see the crossing from inside the mill or from the doorway. The speed at which the engine emerged is not definitely fixed, the testimony varying on this point from 5 to 11 or 12 miles an hour. The plaintiff testified that he was not told about the doorway and crossing, or warned as to the danger of engines coming out.

There is very little directly conflicting testimony in the record, and the foregoing statement embodies substantially all that is necessary, in regard to the facts, to determine the questions raised before this court. Fourteen assignments of error were filed, and are set out at length in the record. The counsel for plaintiff in error, in their argument before the court and in their brief, confine themselves wholly to the discussion of the questions raised by the seventh to the thirteenth assignments, inclusive. These, they said, they considered the vital questions in the case, and, in order to obtain a distinct decision of them, they expressly waived any decision upon the other assignments. The two important questions raised by the assignments referred to are, as stated in the language of the brief of plaintiff in error:

'First. Whether, in the absence of evidence that the danger was hidden, or that the servant was misled by the failure of the master to adopt such constructions, methods, or rules as were usual in the trade, and which the servant therefore had the right to take for granted until otherwise instructed, it was proper to submit to the jury the question whether, in their judgment, the place of work was reasonably safe or the rules reasonably proper, and thus make their judgment on these points the test of the master's liability.

Second. Whether the court should refuse to give binding instructions for defendant, where the plaintiff's own testimony showed that he contributed to the injury by a failure to take the precautions which the dictates of ordinary prudence, as recognized by all reasonable men, would require.'

The tenth and thirteenth assignments of error relate to the first of these questions. The seventh, eighth, ninth, and eleventh relate to the second, and the twelfth, which referred to the refusal of the general request for binding instructions, covers both. The questions here stated are important, and involve the discussion of legal principles which lie at the foundation of the law governing the relation of master and servant. The negligence of the master alleged in the plaintiff's statement, was-- First, that the servant was put to work in 'an unsafe and dangerous place'; second, that the master neglected to 'instruct and warn plaintiff against the peculiar dangers' of the work; and, third, that the master employed incompetent and careless fellow workmen. As to this third ground there was no evidence, and it may therefore be disregarded.

While not attempting to define 'negligence,' as a legal concept, we may safely say that actionable negligence involves a breach of duty owing by a responsible person either to the public generally or to some particular individual. This makes it necessary that we should consider in the present case the duty owed by the defendant below to the plaintiff below; that is, the general duty of a master to a servant, as applicable to or modified by the special circumstances of the case. Duty and negligence, thus considered, are correlative terms. It is the duty of the master, whether that duty rests upon the terms of the contract of service, expressed or implied, or upon the rules of law governing the situation, to see to it that the servant is exposed to no extraordinary risks which he could not reasonably anticipate. In other words, that there...