Choctaw, O. & G.R. Co. v. Holloway, 1,625.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 114 F. 458
• Docket Number: 1,625.
• Parties: CHOCTAW, O. & G.R. CO. v. HOLLOWAY.
• Decision Date: 31 March 1902

114 F. 458

CHOCTAW, O. & G.R. CO.
v.
HOLLOWAY.

No. 1,625.

United States Court of Appeals, Eighth Circuit.

March 31, 1902

E. B. Peirce and C. B. Stuart (J. W. McLoud, on the brief), for plaintiff in error.

J. W. House (M. House, on the brief), for defendant in error. [114 F. 459]

In the early morning of October 30, 1900, while it was yet dark, a road engine of the Choctaw, Oklahoma & Gulf Railroad Company collided with a horse which was caught in a trestle as the engine was backing, tender foremost, from Brinkley to Hulbert, and injured Will Holloway, the defendant in error. There was no light on the forward end of the tender, and no employe there to warn of danger. There was no brake on the engine, although there was a brake upon the tender. Holloway was a fireman working on the engine. He was aware of the darkness of the night, of the absence of a light and of an employe upon the end of the tender, but he insisted that he did not know that there was no brake upon the engine. He sued the company for negligence, in that it failed to supply the engine with a proper brake; alleged that the accident would not have occurred if such a brake had been provided, and that through its absence he was caught between the tender and the engine when the air was applied to the brake upon the tender, and seriously injured. The court instructed the jury that if there was no brake upon the engine, and Holloway did not know, and would not by the exercise of reasonable diligence and prudence have known, that the engine was supplied with a brake, and if the absence of the brake caused the accident, the company was liable, and they might return a verdict [114 F. 460] against it, but that, if there was a failure of proof of either of these facts, their verdict must be for the defendant. This instruction, and the refusal of the court to instruct the jury to return a verdict for the defendant, are the principal errors assigned by the company, although many others are specified.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN, Circuit Judge, after stating the case as above, .

Actionable negligence is a breach of duty. Where there is no breach of duty, there is no negligence, and there can be no recovery. It is not the duty of the master to furnish his servants with reasonably safe appliances, machinery, tools, or working places, or to keep them in a reasonably safe condition of repair. His failure to do so is not the breach of any duty, and it furnishes no basis for an action of negligence. The limit of his duty here is to exercise ordinary and reasonable care, having regard to the hazards of the service, to provide his employes with reasonably safe appliances, machinery, tools, and working places, and to exercise ordinary and reasonable care to keep them in a reasonably safe c ondition of repair. Railway Co. v. Jarvi, 3 C.C.A. 433, 435, 436, 53 F. 65, 67, 68; Gowen v. Harley, 6 C.C.A. 190, 197, 56 F. 973, 980; Railway Co. v. Linney, 7 C.C.A. 656, 660, 59 F. 45, 48; Railway Co. v. Needham, 69 F. 823, 825, 16 C.C.A. 457, 459; Railroad Co. v. Johnson, 81 F. 679, 680, 27 C.C.A. 367, 368; Railroad Co. v. Myers, 11 C.C.A. 439, 63 F. 793; Id., 22 C.C.A. 269, 76 F. 443. A servant may assume that his master has discharged this duty, unless he knows, or by the exercise of reasonable care he would have known, that the duty had not been discharged, and that there were defects in the machinery and appliances with which, or in the place in which, he undertakes to work. On the other hand, the servant assumes all the ordinary risks and dangers of the employment upon which he enters, so far as they are known to him, and so far as they would have been known to a person of ordinary prudence and care by the exercise of ordinary diligence. He is not required to search for latent defects or hidden dangers, but it is his duty to exercise reasonable diligence to observe and be cognizant of all obvious defects in the machinery and appliances with which he is working; and he assumes the risks and dangers of all such defects of which he has knowledge, and of which he would have had knowledge by the exercise of ordinary care and diligence. Manufacturing Co. v. Erickson, 55 F. 943, 946, 5 C.C.A. 341, 344; Fordyce v. Edwards, 60 Ark. 438, 442, 30 S.W. 758; Anderson v. Railway Co., 39 Minn. 523, 41 N.W. 104; Railroad Co. v. Leverett, 48 Ark. 347, 3 S.W. 50, 3 Am.St.Rep. 230; Wormell v. Railroad Co., 79 Me. 405, 10 A. 49, 1 Am.St.Rep. 321; Way v. Railroad Co., 40 Iowa, 341; Batterson v. Railway, 53 Mich. 125, 18 N.W. 584; Illick v. Railway Co., 67 Mich. 632, 35 N.W. 708; Morton v. Railroad Co., 81 Mich. 435, 46 N.W. 111.

The plaintiff in this case alleged that his injury was caused by the [114 F. 461] failure of the railroad company to provide the engine upon which he was working as fireman with suitable brakes to arrest its motion when occasion required. The court charged the jury that if there was no brake upon the engine, if the absence of the brake caused the injury, and if the plaintiff was not aware of the fact that the engine was not provided with a brake, and if a person of ordinary prudence, exercising reasonable care, would not, under the circumstances of this case, have been aware of this fact, they might render a verdict against the company. It is contended that this charge was erroneous, (1) because there was no substantial evidence to warrant the finding of the jury that the plaintiff did not know, or by the exercise of ordinary care would not have known, of the absence of the brake; (2) because there was no substantial evidence to warrant their finding that the injury could have been avoided by the presence of the brake upon the engine; and (3) because there was no substantial evidence to warrant the finding that the absence of the brake was the proximate cause of the injury. A careful and painstaking examination of the testimony has satisfied us, however, that this position cannot be sustained. The plaintiff testifies that he was not aware that the engine was not furnished with a brake. Another witness, who was employed about the engine as a brakeman for some time, demonstrates by his testimony that he did not know whether there was a brake on the engine or not; and the jury made an ocular inspection of an engine of the same character as that upon which the accident occurred, for the express purpose of determining this question, and they found this issue in favor of the plaintiff. The knowledge upon this question which an inspection of the engine conveyed to the minds of the jurors is not, and cannot be, presented to this court by the record; and we cannot undertake to say that all reasonable men, with the testimony and the knowledge which this jury lawfully acquired, would necessarily come to a conclusion contrary to that which these jurors have reached. McReynolds v. Railroad Co., 14 Am. & Eng. R.R. Case. 172, 174; Railroad Co. v. Hopkins, 90 Ill. 323.

Upon the question whether or not the engine could have been stopped after knowledge of the presence of the horse in the trestle in time to prevent the accident, the testimony was not so clear that it was the duty of the court to withdraw this issue from the jury. Nor can it be properly said, as a matter of law, that the absence of this brake was not the proximate cause of the injury. It is undoubtedly true that one of the proximate causes of the accident was the negligence of the party who permitted the horse to stray into the trestle. But if the injury would not have been inflicted if there had been a brake upon the engine, it cannot be truthfully said that the absence of this brake was not another of the proximate causes of the damage, inasmuch as the accident would not have happened if the brake had been provided. If it be true, as the jury have found, that no injury would have been inflicted upon the plaintiff if this engine had been provided with a brake, it is no defense for the railroad company that the concurring negligence of the owner of the horse contributed to the infliction of the injury. One is liable for an injury caused by the concurring negligence of himself and a third party to the same extent [114 F. 462] as for one caused entirely by his own negligence. It is no defense for a wrongdoer that a third party shared the guilt of the same wrongful act, nor can he escape liability for the damages he has caused on the ground that the wrongful act of a third party...