Green & Coates St. Pass. Railway Co. v. Bresmer

• Decision Date: 02 May 1881
• Parties: Green and Coates Street Passenger Railway Company <I>versus</I> Bresmer.
• Court: Pennsylvania Supreme Court

97 Pa. 103

Green and Coates Street Passenger Railway Company versus Bresmer.

Supreme Court of Pennsylvania.

January 19 and 20, 1881.

May 2, 1881.

January 19th and 20th 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1880, No. 130.

Henry Budd, Jr. (with whom was George W. Thorn), for the plaintiff in error.—The danger of being kicked by a horse is an ordinary risk, incident to the business of a groom. Even regarding it in this case as an extraordinary risk, Bresmer had become fully aware of it, and by remaining in the defendant's employ, without complaint or notice, he voluntarily assumed it and should not have been allowed to recover: Whart. Neg., sect. 199; 1 Add. on Torts § 569; Wood, Master and Servant, 793; Dynen v. Leach, 40 Eng. L. & E. Rep. 491; Frazier v. Pennsylvania Railroad Co. 2 Wright 104; Mansfield Coal and Coke Co. v. McEnery, 10 Norris 185. Moreover, in this case, the plaintiff was guilty of contributory negligence, in omitting the means of protection against the mare's kicking, by tying up her front leg, which he was always in the habit of doing while grooming her. The judge erred in charging, that if the plaintiff "recklessly" attempted to groom her without using this precaution, he could not recover, thus leaving the jury too great latitude.

Gustavus Remak, for the defendant in error, presented no paper-book and made no argument.

Mr. Justice MERCUR delivered the opinion of the court, May 2d 1881.

This action was to recover damages for injuries which the defendant in error suffered by the kick of a horse, owned by the company. He was in the employment of the latter as an hostler. As such, he had charge of several horses, including the one which injured him.

A master does not warrant his servant's safety. He, however, is under an implied contract with those whom he employs, to adopt and maintain suitable instruments and means with which to carry on the business in which they are employed. This includes an obligation to provide a suitable place in which the servant, being himself in the exercise of due care, can perform his duties safely or without exposure to dangers that do not come within the reasonable scope of his employment: Cayzer v. Taylor, 10 Gray 274; Seaver v. Boston and Maine Railroad Co., 14 Id. 466; Gilman v. Eastern Railroad Co., 10 Allen 233; Coombs v. New Bed-ford Cordage Co., 102 Mass. 572. A servant, however, assumes the risk naturally and reasonably incident to his employment. He is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself: Hayden v. Smithville Manufacturing Co., 29 Conn. 548; Mad River & Lake Erie R. R. Co. v. Barber, 5 Ohio St. 541; Whart. on Neg., sect. 217. Inasmuch as the relation of master and servant cannot imply an obligation on the part of the master, to take more care of the servant than he may reasonably be expected to take of himself, he cannot complain if he is injured by exposure, after having the opportunity of becoming acquainted with the risks of his employment, and accepts them: Id. sects. 214 and 217; 1 Add. on Torts, sect. 255.

The undoubted evidence in this case shows the defendant in error had full knowledge of the vicious habits of the mare which kicked him. She...