Mexican Cent. Ry. Co. v. Jones

• Decision Date: 26 February 1901
• Docket Number: 1,005.
• Citation: 107 F. 64
• Parties: MEXICAN CENT. RY. CO. v. JONES.
• Court: U.S. Court of Appeals — Fifth Circuit

107 F. 64

MEXICAN CENT. RY. CO. v. JONES.

No. 1,005.

United States Court of Appeals, Fifth Circuit.

February 26, 1901

A railway conductor, in detaching cars from a flat car standing on a side track, ordered a brakeman to cut off the cars, and directed another brakeman to see that the brake on the flat car was securely set. On starting away with the detached cars the conductor walked behind them, in order to signal another train, and was injured by being run down by the flat car which failed to remain where left, because the brake was defective and insecure. Held, in an action by the conductor that it was not error to refuse affirmative charges for defendant; the question of negligence being properly left to the jury.

The following is the charge of the trial court (BOARMAN, District judge) The plaintiff claims damages of the defendant for its alleged failure to provide and keep in proper repair suitable appliances to be used by its employes on its cars; and it is claimed by the plaintiff that while he was acting as conductor on one of defendant's freight trains it became necessary for him to remove two cars that were standing on what is commonly called a 'Y' from in front of a flat car, and that the said cars that he removed and the flat car were standing on a grade, and that, when he removed the two ballast cars from in front of the flat car and started down the track, the said flat car, by reason of a defective brake which he alleges was broken and worn and unsafe to hold the car on said grade, ran down upon him, striking and injuring him; that the dog which was intended to operate in the ratchet wheel of said brake was loose and worn in such a way that it would not stay in the ratchet wheel, and consequently would not hold the car; and that in consequence of the defective brake the car escaped and ran down on the track and injured him.

In reference to the duty a railway company or master owes to its employes, the law requires the company to exercise reasonable care in furnishing suitable machinery and appliances for carrying on the business for which it employs the servant, and in keeping such machinery and appliances in repair, including the duty of making inspections, tests, and examinations at proper intervals; but the master is not responsible for hidden defects which could not have been discovered by careful inspection. The duty of a railway company in that respect to its employes is discharged when, and only when, its agents whose business it is to supply such instrumentalities exercise due care as well in their purchase originally as in keeping and maintaining them in their original condition, so as to be reasonably and adequately safe for use by employes. A master employing a servant impliedly engages with him that the place in which he is to work, and the tools or machinery with which he is to work, or by which he is to be surrounded, shall be reasonably safe. It is the master who is to provide the place and the tools and the machinery, and when he employs one to enter into his service he impliedly says to him that there is no other danger in the place, the tools, and the machinery than such as is obvious and necessary. Of course, some places of work and some kinds of machinery are more dangerous than others, but that is something which is inherent in the thing itself. It is a matter of necessity and cannot be obviated; and within such limits the master who provides the place, the tools, and the machinery owes a positive duty to his employe in respect thereto. That positive duty does not go to the extent of a guaranty of safety. It does not require the master to furnish the safest and best tools or machinery, nor those of the latest style and pattern, but it does require that reasonable precautions be taken to secure safety; and it matters not to the employe by whom that safety is secured, or the reasonable precautions therefor taken. He has the right to look to the master for the discharge of that duty, and if the master, instead of discharging it himself, sees fit to have it attended to by others, that does not change the measure of obligation to the employe, or the latter's right to insist that reasonable precaution shall be taken to secure safety in these respects. See Belden v. Chase, 150 U.S. 688, 14 Sup.Ct. 264, 37 L.Ed. 1218; Railroad Co. v. McDade, 135 U.S. 570, 10 Sup.Ct. 1044, 34 L.Ed. 235; Tuttle v. Railway Co., 122 U.S. 195, 7 Sup.Ct. 1166, 30 L.Ed. 1114. 'It is a general rule that a servant entering into employment that is hazardous assumes the usual risks of the service and those which are apparent to ordinary observation; and when he accepts or continues in the service with knowledge of the character of appliances, machinery, and tools from which injury may be apprehended, he also assumes the hazards incident to the situation. * * * Those not obvious assumed by the employe are such perils as exist after the master has used due care and precaution to guard the former against danger. And the defective condition of appliances or machinery, which by the exercise of reasonable care of the master may be obviated, and from the consequences of which he is released from responsibility to the servant, by reason of the latter's knowledge of the situation, is such as is apparent to his observation. ' See Railroad Co. v. Archibald, 170 U.S. 673, 18 Sup.Ct. 780, 42 L.Ed. 1191. 'The employer may rely on the fact that his employe assumes the risks usually incident to the employment. The employe, on the other hand, has the right to rest on the assumption that appliances furnished are free from defects discoverable by proper inspection, and is not subjected to the danger of using appliances containing such defects because of his knowledge of the general methods adopted by the employer in carrying on his business, or because by ordinary care he might have known of the methods, and inferred therefrom that danger of unsafe appliances might arise. The employe is not compelled to pass judgment on the adequacy of the appliances furnished by the master. He has the right to assume that the employer will use reasonable care to make the appliances safe, and to deal with those furnished relying on this fact. ' See Railroad Co. v. Archibald, 170 U.S. 665-671, 18 Sup.Ct. 777-779, 41 L.Ed. 1188-1191; Id., 75 F. 806, 21 C.C.A. 520.

As before stated, the plaintiff claims that the defendant was negligent in allowing the brake on the flat car to be and remain out of order, and in such defective condition that it would not hold the flat car on the grade where it was standing when the two cars were removed in front of it. As the plaintiff charges negligence, it devolves upon him to establish negligence against the defendant in those respects before he is entitled to recover a verdict at your hands. If the brake (that is, the ratchet wheel and the dog) were in good order and condition at the time the plaintiff was hurt he cannot recover, notwithstanding he may have been attending to his proper duties, and may have been exercising due care of himself in discharging them; for in such a case he assumed the risk incident to the service. Accidents often do, and will continue to, happen in the operation of railroad trains, without fault or negligence on the part of the railroad companies; and, if such accidents happen to an employe without fault or negligence on the part of the company, in such cases the railroad company would not be liable. It was also the duty of the plaintiff to take proper care of himself,-- that is, such care as an ordinarily prudent person would have exercised under similar circumstances; and, if the plaintiff failed to take reasonable care of himself and to look out for his own safety, then he cannot recover for any injuries to which his want of care and precaution contributed. Whether the brake and the ratchet wheel and dog were in good order, whether the injuries to the plaintiff were the result of unavoidable accident, or whether they were attributable to the negligence of the defendant in failing to exercise reasonable care in supplying said flat car with appliances adequately safe for the purposes for which brakes are used, and whether the plaintiff was guilty of negligence which contributed to his injuries, are all questions of fact, which, like all other questions of fact, you will determine for yourselves from a consideration of the evidence before you. If you believe from the evidence that on the occasion when the plaintiff was injured there were some cars standing on the 'Y,' and that the plaintiff, as conductor, caused two of the cars to be removed from in front of the flat car, which subsequently ran down and injured him, and that before removing said two cars from in front of said flat car he caused his brakeman to set the brakes on the flat car and the coal car, which were left standing on the...