Spahn v. Peoples Railway Company

• Decision Date: 09 February 1912
• Citation: 83 A. 27,26 Del. 302
• Court: Delaware Superior Court
• Parties: JOHN B. SPAHN v. PEOPLES RAILWAY COMPANY, a corporation of the State of Delaware

83 A. 27

26 Del. 302

JOHN B. SPAHN v. PEOPLES RAILWAY COMPANY, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

February 9, 1912

Superior Court, New Castle County, February Term, 1912.

ACTION ON THE CASE (No. 91, May Term, 1911), brought by the plaintiff who at the time was employed as a motorman by the defendant, to recover damages for personal injuries. Said injuries were alleged to have been sustained on account of the negligence of the defendant in not furnishing the plaintiff with reasonably safe appliances, to wit, brakes. The contention of the plaintiff was that by reason of the imperfect and defective condition of the brakes upon the car which he was operating as the servant of the defendant, he was unable to stop the car, and by reason thereof, collided with another trolley car and was thereby injured. Verdict for plaintiff.

Further facts and questions presented appear in the charge of the court.

PLAINTIFF'S PRAYERS.

That it is the primary duty of the master to provide suitable and reasonably safe tools and machinery for the servant, with which to perform a particular work in which he is engaged. If the master shall fail in the performance of his primary duty he is liable to the servant for whatever injury he may suffer resulting alone from such failure. In the performance of this duty, the master must use all reasonable care and prudence for the safety of the servant, having regard to the character of the work to be performed. Such care must always be in proportion to the danger of the employment. The servant has the right to rely upon the master for the proper performance of this duty without inquiry on his part. Lawless Admr. v. P & J. Co., 3 Penn. 1, 3; Ray v. D. S. Steel Co., 2 Penn. 525, 527; Boyd v. Blumenthal, 3 Penn. 564 567; Winkler v. P. & R. Ry., 4 Penn. 80, 83; Strattner v. Wil. City Elec. Co., 3 Penn. 245, 247.

That notice of defects in machinery and appliances given to a dispatcher of the company having charge and control of the men and the cars, is notice to the company and the promise to remedy the defect made by such dispatcher is a promise of the company in law. Ray v. D. S. Steel Co., 2 Penn. 525, 528; Boyd v. Blumenthal, 3 Penn. 564, 568.

That when machinery is defective in the knowledge of the employee, yet if the master promises to remedy the defect and the employee relying on that promise, continues to use it for a reasonable time, he does so at the master's risk, inasmuch as he has a right to rely on such promise. Boyd v. Blumenthal, 3 Penn. 564, 567; Ray v. D. S. Steel Co., 2 Penn. 525, 528.

If the jury find for the plaintiff their verdict should be for such sum as in their judgment from the testimony will reasonably compensate the plaintiff for his injuries including his loss of time and wages and money expended in medical treatment, his pain and suffering in the past and such future suffering as may result from the accident and he may also recover for permanent injuries received, such sum as will cover the pecuniary loss because of his inability to earn a living in the future. Murphy v. Hughes Bros. & Bangs, 1 Penn. 250, 262; Ray v. D. S. Steel Co., 2 Penn. 525, 529; Boyd v. Blumenthal & Co., 3 Penn. 564, 569; Winkler v. P. & R. Ry. Co., 4 Penn. 80, 87.

DEFENDANT'S PRAYERS.

The gist of this action is negligence and the burden of proving the negligence of the defendant rests upon the plaintiff. If there was no negligence on the part of the company the verdict should be for the defendant.

Even if there was negligence on the part of the defendant, yet if the negligence of the plaintiff contributed to the accident at the time thereof, the verdict should be for the defendant. Where there is contributory negligence, the law will not attempt to measure the proportion of blame or negligence to be attributed to each party. Snyder v. Peoples Ry. Co., 4 Penn. 150; many other Delaware cases.

Contributory negligence is the negligence of the plaintiff, or of the person on account of whose injury the action is brought, amounting to a want of ordinary care, and approximately contributing to bring about the injury. 1 Thompson on Negligence, § 169, page 167.

If the defendant exercised reasonable care in the inspection of the trolley car which the plaintiff was operating at the time of the accident and that the brakes of said car, or other appliances complained of, when last inspected before the accident, were in reasonably good working condition and that any defect or disorder (if any) in any of said appliances was not discovered sufficiently long before the accident as to reasonably permit the repair thereof or the discontinuance of the operation of such car, in such event the existence of such defect or disorder would not constitute negligence on the part of the defendant.

If the defendant exercised reasonable care in the inspection of the car in question and of the brakes and other appliances thereon, and that the same were found in reasonably good working condition when the car was turned over to the plaintiff to operate as a motorman, shortly before the accident, and that any defect or disorder (if any) in said appliances occurred during the operation of the car by the plaintiff, and that there was no opportunity to repair the same or discontinue the use of the car before the accident, in such event the existence of such defect or disorder would not constitute negligence on the part of the defendant.

It is only the duty of the defendant to furnish its motormen with reasonably safe cars equipped with reasonably safe appliances for operation, and the motormen as a part of the conditions of their employment in that capacity, must assume the risk of defects or disorders that occur in the working parts of the car while being operated by such motormen, and when such defects or disorders appear in said cars while under the control and operation of such motormen they are bound to use their best judgment and discretion for the repair, operation or discontinuance of operation of such cars.

Instruction as to the difference between the responsibility of the defendant company to its employees and its responsibility to passengers or third persons.

Verdict for plaintiff.

W. W. Knowles and Caleb E. Burchenal for plaintiff.

Robert H. Richards for defendant.

PENNEWILL, C. J., and WOOLLEY, J., sitting.

OPINION

PENNEWILL, C. J., charging the jury:

Gentlemen of the jury:--The plaintiff in this action seeks to recover from the defendant company damages for personal injuries which are alleged to have been sustained on account of the negligence of said company.

The plaintiff claims that about eleven o'clock on the night of August 14, 1911, he was motoring a car of the defendant from Brandywine Springs to the City of Wilmington, and because of defective brakes on the car, which would not take hold of the wheels, he was unable to stop or hold the car when descending a grade near Haley's curve, and in consequence thereof his car collided with another car and he was injured.

The plaintiff's declaration consists of two counts, one of which avers that the said defendant negligently and carelessly suffered and permitted the said plaintiff to use and operate a certain car with an improper, defective, inadequate, unfit, unsafe, unsuitable and dangerous brake shoe, all of which was well known to the said defendant but unknown to the said plaintiff, and by reason of the said negligence of the said defendant in permitting the use of said car with the defective brake shoe as aforesaid at the time and place aforesaid, the said car on which the said plaintiff was a motorman as aforesaid ran into and collided with another car operated and controlled by the said defendant, whereby the said plaintiff was greatly bruised, cut, mangled, broken, injured and distressed.

The second count is similar to the first, except that the word "brakes" is used in the second count instead of "brake shoe," as in the first count.

So that, the negligence averred, and relied upon, by the plaintiff is, that the defendant suffered and permitted the plaintiff to use and operate the car with a defective, unsafe and dangerous brake shoe, or brakes.

The gist of this action is negligence, which is the want of ordinary care, and the burden of proving the negligence of the defendant rests upon the plaintiff. If there was no negligence on the part of the company your verdict should be for the defendant. Even if there was negligence on the part of the defendant, yet if the negligence of the plaintiff contributed proximately to the accident at the time thereof, the plaintiff cannot recover. In such case the plaintiff would himself be guilty of contributory negligence, and where there is such negligence the law will not attempt to measure the proportion of blame or negligence to be attributed to each party.

Contributory negligence has been defined to be the negligence of the plaintiff, or of the person on account of whose injury the action is brought, amounting to a want of ordinary care, and approximately contributing to the injury.

The relation existing between the defendant and the plaintiff at the time of the accident was that of master and servant, and the primary duty imposed upon the defendant towards the plaintiff in the course of his employment by reason of this relation was to furnish him reasonably safe tools, machinery and appliances with which to work. The tools or machinery used need not be of the safest, best nor of the most approved kind. It is sufficient if they are reasonably safe, and adapted to the purpose of the employment. If the master fails to observe this rule of law and injury results to his servant from such failure, he becomes liable therefor on the ground of...