Burlington & C. R. Co. v. Liehe

• Decision Date: 01 February 1892
• Citation: 17 Colo. 280,29 P. 175
• Parties: BURLINGTON & C. R. CO. v. LIEHE.
• Court: Colorado Supreme Court

29 P. 175

17 Colo. 280

BURLINGTON & C. R. CO. v. LIEHE.

Supreme Court of Colorado

February 1, 1892

Appeal from district court, Arapahoe county.

Action by William Liehe against the Burlington & Colorado Railroad Company to recover for personal injuries. Verdict and judgment for plaintiff. Defendant appeals. Reversed. Petition for rehearing denied.

The other facts fully appear in the following statement by HATY C.J.:

Appellee William Liehe, as plaintiff below, in his complaint alleges the incorporation of the defendant, the Burlington & Colorado Railroad Company, the appellant here, and states: That the plaintiff was in the employ of defendant as a common laborer upon the road-bed and track of defendant company at the time of the injury complained of; that in November, 1887, in the county of Weld, in this state, while the plaintiff was in the usual course of his employment, the section boss or foreman of the defendant company ordered the plaintiff to place himself upon, and assist in propelling, a certain hand-car having been provided by defendant for the use of plaintiff and other laborers along the line of their work upon said road-bed and track, and to transport them to and from their meals and lodging places, as occasion might require; that appellant, in obedience to said order of section boss, placed himself upon said hand-car, and assisted in propelling the same by the working of a lever, and thereupon, while said hand-car was being so propelled, without any fault or negligence on plaintiff's part, and by reason of the fault, carelessness, and negligence of the defendant, a certain iron rod of said hand-car, which communicated motion from said lever to the wheels of the car, suddenly broke causing said lever to violently strike plaintiff, and throw him from the front of the car; that plaintiff was thereby injured, and his left collar-bone broker and fractured causing him great pain, suffering, and expense. Plaintiff further alleges that, by reason of said injury, he was permanently disabled, so that he is much less able to earn a livelihood than he was before the injury complained of. It is also alleged that said rod was nearly worn out and partly broken prior to the injury, all of which the said defendant already knew, prior to and at the time of said injury to plaintiff. Plaintiff claims damages in the sum of $5,000. The defendant in its answer denies all the material allegations of the complaint, except defendant's incorporation, and its employment of plaintiff. It admits the breaking of the lever upon the hand-car, but denies that plaintiff's injury was caused thereby. And, as a second defense, it alleges that the plaintiff, without any cause for fright or reasonable excuse for supposing himself to be in peril of life or limb, jumped from said car, striking his shoulder against a cross-tie, and thereby receiving the injury for which he sues; that no reason to expect damages from the breaking of said rod could have been apprehended by any person of ordinary presence of mind; that had plaintiff retained his presence of mind, and remained upon the car, he not only could not have received said injury, but he could not possibly have received an injury of any kind whatever, by reason of the breaking of the same. The trial below resulted in a verdict and judgment for the plaintiff for the sum of $2,000. The defendant duly reserved its exceptions, and brings the cause here for review.

Wolcott & Vaile, for appellant.

Rittenhouse & Talbot, for appellee.

HAYT, C.J., ( after stating the facts.)

The plaintiff in this case was engaged in the performance of ordinary labor upon defendant's track and road-bed,--labor in which no machinery or tools were used requiring particular skill or care. The hand-car, the breaking of the rod of which it is alleged caused the injury complained of, was used for the purpose of transporting appellee and other workmen along the track. No special skill was required in the use of this hand-car. At the time of receiving the injury complained of appellee had quit work, and with others was returning to the section house for dinner. He had been in the employment of defendant's company for a period of 20 months previous to this accident using this hand-car daily during all of this period. The right of plaintiff to recover in this case is based upon the duty of the railroad company to use reasonable care for the safety of its employes, and to use like care in the selection of proper and adequate machinery for the proposed work, and keeping it in repair, and the defendant's alleged negligence in this particular, resulting, as it is claimed, in the injury complained of. The master is not bound to provide and keep, for the use of his employes, machinery which is absolutely safe. The law imposes on him the duty, only, of exercising reasonable care and caution in furnishing and repairing such machinery. The rule is that when a person engages in the service of another he undertakes, as between himself and his employer, to assume all the ordinary danger and liability of the business upon which he is about to enter, and no more, and if, without fault on his part, he is injured as the result of the negligence of the master, the latter must answer in damages. There are some exceptions to the rule stated,--as, for instance, where the servant has equal knowledge with the master of the defects existing in the machinery the servant will be deemed to have waived his right of action for damages arising from injuries resulting from such defects. In considering the rules above stated, due regard must, of course, be had to the limited knowledge of the employe as to the machinery which he is called upon to use, and the fact that he has a right, to a certain extent, to rely upon the superior knowledge of his employer. The rule in this regard, however, is not different in reference to a railroad company from that which governs the relations of master and servant in other instances. Its application must often depend upon the kind of machinery used, whether intricate or simple in construction. For instance, a gardener could not be held guilty of actionable negligence in furnishing a defective hoe or...