WASHINGTON &C. RAILROAD CO. v. McDADE

MR. JUSTICE LAMAR, after making the foregoing statement, delivered the opinion of the court.

A motion was filed in this case to dismiss the writ of error on the ground that the general term of the court below never acquired jurisdiction of the case, and that, as a consequence thereof, this court is also without jurisdiction. In connection with the motion to dismiss there was also a motion to strike out the bill of exceptions.

The argument urged by the plaintiff in support of both motions is, that the rules and statutes prescribing the practice and proceedings for the Supreme Court of the District of Columbia, in securing the review, in a general term of that court, of a judgment at a special term, have not been complied with in this case.

Neither of these motions can be sustained. We think the court in general term acquired jurisdiction of the case; and as it comes here regularly from that court we shall proceed to consider it upon its merits.

There are seven assignments of error which we will consider, not seriatim, but with reference to their relevancy to the issues presented by the record. These issues are, (1) Was the machinery with which the defendant worked defective and unsafe for the purpose for which it was used, and more particularly, was the putting the belt on the large pulley by hand dangerous? or should there have been a loose pulley upon which the belt could have been safely shifted by means of a lever? (2) Assuming that there was this defect in the machinery which made it dangerous, was the plaintiff ignorant of the defect or of the danger connected with it? (3) Did the defendant, in failing to notify the plaintiff of the danger, have reason to believe the plaintiff was ignorant either of the nature of the machinery, or of the danger incident to its use? (4) Was the plaintiff guilty of such contributory negligence as precluded a recovery?

The three instructions given by the court to the jury as requested by the counsel for the defendant were to the effect, that, if the jury believed from the evidence that any one of the three following conditions or state of facts existed, the plaintiff could not recover: (1) That the accident would not have occurred but for the negligence or want of ordinary care and caution on the part of the plaintiff; (2) That if the foreman of the shops, on the Saturday evening preceding the accident, ordered and directed the plaintiff to take the belt off the pulley, and to send on Monday morning for Moore to put it on, he was bound to obey the order directing him to send for Moore, and his not obeying it was such negligence as would prevent a recovery in this action; and (3) Assuming that putting on the belt was attended with danger, the question to be determined by the jury was not whether the plaintiff knew of such danger, but whether a man of ordinary care and observation, in his situation, would have known it, as he must be presumed to possess that degree of intelligence; and that if with such observation and care he would have known the danger, then in putting on the belt he assumed all the risks incident thereto.

The instruction given by the court on its own motion was as follows: "If the jury find from the evidence that after he was employed by the defendant the plaintiff voluntarily, and without being required so to do, attended to the belt and habitually and with the knowledge of the defendant's officers placed the same in position without accident, and his course of conduct in relation thereto was such as to induce the defendant or its officers to believe that he had the requisite skill for that purpose, or that he had willingly assumed the duty of so placing the belt, the defendant was not in default for not having instructed him as to any danger incident to the operation."

Another instruction given by the court in lieu of the 16th one requested by the defendant was as follows: "But the jury are instructed that the defendant was not a guarantor of the safety of its machinery, and was only bound to use ordinary care and prudence in the selection and arrangement and care thereof, and had a right to use and employ such as the experience of trade and manufacture sanctioned as reasonably safe."

The other instructions given by the court were modifications to a degree of those asked by the defendant, and were mere amplifications of those above mentioned.

We do not think there was any error in any of these instructions of which the defendant had any right to complain. The propositions contained in them are in strict accord with the principles laid down by the decisions of this court. Hough v. Railway Co., 100 U.S. 213, 217; Northern Pacific Railroad v. Herbert, 116 U.S. 642, 647, 648; Kane v. Northern Central Railway, 128 U.S. 91, 94; Jones v. East Tennessee &c. Railroad Co., 128 U.S. 443.

The general principles of law by which the liability of an employer for injuries to an employé, growing out of defective machinery, is tested are well settled by those decisions. Neither individuals nor corporations are bound, as employers, to insure the absolute safety of the machinery or mechanical appliances which they provide for the use of their employés. Nor are they bound to supply the best and safest or newest of those appliances for the purpose of securing the safety of those who are thus employed. They are, however, bound to use all reasonable care and prudence for the safety of those in their service, by providing them with machinery reasonably safe and suitable for the use of the latter. If the employer or master fails in this duty of precaution and care, he is responsible for any injury which may happen through a defect of machinery which was, or ought to have been, known to him, and was unknown to the employé or servant. But if the employé knew of the defect in the machinery from which the injury happened, and yet remained in the service and continued to use the machinery without giving any notice thereof to the employer, he must be deemed to have assumed the risk of all danger reasonably to be apprehended from such use, and is entitled to no recovery. And further, if the employé himself has been wanting in such reasonable care and prudence as would have prevented the happening of the accident, he is guilty of contributory negligence, and the employer is thereby absolved from responsibility for the injury, although it was occasioned by the defect of the machinery, through the negligence of the employer.

The state decisions in harmony with the principles laid down by this court on this subject are too numerous for citation.

We will now briefly notice the assignments of error, the first of which is that the court erred in refusing to direct the jury to return a verdict for the defendant, as requested by counsel.

It is argued, in support of this assignment, that there was not a scintilla of evidence to show negligence on the part of the defendant, as the employer of the plaintiff; that the part of the machinery which caused the accident was not defective; that the evidence showed it to be of the most approved character, purchased without regard to cost, and such as was generally in use throughout the country; that loose pulleys and a shifter or lever for shifting the belt were not used in blacksmith shops; that the plaintiff had been in the shop for nearly eighteen months, and had become familiar by constant use with the operation of putting the belt on the pulley, and it was impossible for him not to know what danger attended its use; that the company had employed a man, competent and skilful, whose duty it was to put on all the belts in the establishment; that it was not in the line of the duty of the plaintiff to put on this belt, and whenever he did so he was acting outside the scope of his employment; and, lastly, that the manner in which the accident occurred, as described by the plaintiff himself, in failing to wait until Kline had slowed up the engine, shows that he was, by his own heedlessness and rash want of care, the author of his own misfortune. On the other hand, the evidence offered by the plaintiff certainly tended to show that the injury would not have occurred but for the defect of the fixed pulley and the projecting screw; that the machinery was unsafe, and not such as was generally used in shops of that kind, as testified to by experienced machinists introduced by the plaintiff, and the only one examined in behalf of the defendant; that he (the plaintiff) was unaware of the dangers attendant upon putting on the belt by hand; that he did not know that the belt in which he was caught had been recently, and, perhaps, imperfectly repaired; that there were in the other shops of the establishment shifters and levers which could put the belt on the pulley without danger; that he was wholly unaware of the danger attendant upon putting on the belt by hand; and that he supposed he was in the line of his duty when the injury happened.

If this evidence was worthy of belief it certainly could not be said to show such contributory negligence as would justify the court in directing a verdict for the defendant below. As a general rule, the question of contributory negligence is one for the jury, under proper instructions by the court, especially where the facts are in dispute, and the evidence in relation to them is that from which fair-minded men may draw different inferences. Railroad Company v. Stout, 17 Wall. 657. Upon every question in the case — the safety or unsafety of the machinery, the ignorance on the part of the plaintiff of the danger of it, and the negligence of the plaintiff at the time of the accident — the evidence was controverted, and rendered the case just such a one as this court in Jones v. East Tennessee &c. Railroad Co., supra, said that "a due regard for the respective functions of the court and the jury would seem to demand that these questions should have been submitted to the jury." In the language there used, "we see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed questions of fact, why it should not decide such questions as these as well as others."

There are two recent cases in Massachusetts which are so analogous, in many of their features, to the case under consideration, that we deem a special reference to them proper. Daley v. American Printing Co., 150 Mass. 77, was an action by an employé for personal injuries sustained while in the performance of his duties in the defendant's mill, using an elevator operated by a belt passing over a pulley on a shaft. At the trial the evidence introduced by the plaintiff tended to show that the belt was frequently off the pulley; that there was no one in the employ of the defendant specially charged with putting it on when it came off; and that any one using the elevator put the belt on when he found it off. It further showed that the plaintiff, having occasion, in the course of his regular duties, to use the elevator, found the belt off and proceeded to put it on, but in so doing was caught in a set screw projecting from a collar on the shaft and whirled around the shaft, and received serious injuries. The defendant introduced testimony to show that there was another man whose duty it was to put on the belt. At the conclusion of the testimony, the trial court directed a verdict in favor of the defendant, and, the case being carried up on exceptions to the Supreme Judicial Court, that court reversed the judgment of the court below, and ordered a new trial. In its opinion the court said: "The ground upon which the case was withdrawn from the jury is not stated. We cannot say, as matter of law, that no sufficient evidence was introduced or offered of negligence on the part of the defendant, or of freedom from negligence on the part of the plaintiff... . If the machinery was found to be unsuitable, and if the plaintiff was within the line of his duty in attempting to adjust the belt, we cannot say that he was not entitled to go to the jury on the question of whether he was in the exercise of due care."

Myers v. Hudson Iron Co., 150 Mass. 125, was an action for personal injuries sustained by the plaintiffs while in the employ of the defendant. We extract from the syllabus the following: "A mine was reached through a vertical shaft by a bucket lowered by the unwinding of a rope from the uncoupled drum of a hoisting engine, and usually controlled in its descent by a brake operated by the engineer. Laborers employed in the mine entered the bucket to descend as usual, and, upon word being given, the engineer started to let it down, but soon found that the brake was not holding. The bucket fell rapidly for many feet, when it was suddenly stopped by planks across the shaft, and the laborers were hurt. In actions against the employer to recover for such injuries, there was evidence that the brake, besides a loss of initial efficiency, was in design and original construction insufficient; that there were safer contrivances for controlling such a descent, some of which the defendant used elsewhere about the mine; and that gearing used in hoisting had, through wear and a change made in it by the defendant, become less useful as a possible means of stopping the bucket if the brake failed to hold, and, in fact, proved ineffectual to stop the bucket at the time; also, that no person had previously been hurt in going down in the bucket: Held, that the cases were properly submitted to the jury, who were warranted in finding verdicts for the plaintiff."

In the course of the opinion the court said: "The risk of the safety of machinery is not assumed by an employé, unless he knows the danger, or unless it is so obvious that he will be presumed to know it." And in another part of the opinion it was said: "The plaintiffs were allowed to show that other machinery or appliances than those used by the defendant would have been safer; for example, a strap-brake, a friction V, so-called, or a reversible engine. In order to aid the jury in determining whether the defendant had exercised reasonable care in providing and maintaining the machinery actually in use, it was competent to show what other kinds of machinery or appliances were used elsewhere, and might have been used at shaft No. 1. Wheeler v. Wason Manuf. Co., 135 Mass. 294, 298. It does not follow from the introduction of such evidence that the defendant was bound to use the very safest, or newest, or any particular, machinery or appliances; but, as `reasonable care' is a relative term, the jury might properly consider what could be done to secure safety, and the evidence was competent."

As regards the instruction given by the court, on its own motion, above quoted, we think nothing contained therein is prejudicial to the defendant. Indeed it may be doubted if it did not favor the defendant more than the evidence in the case and the law applicable thereto would warrant.

The same remark is true of the instruction given by the court in lieu of the 16th one asked by the defendant. That instruction as requested was as follows: "The employer is bound to use ordinary care and prudence in providing proper machinery, but he is not a guarantor of its safety. If he uses ordinary care and prudence he is absolved from responsibility. The machinery need not be the safest of the kind, provided it is such as a person of reasonable care and prudence would provide." The one given by the court in lieu thereof was as follows: "But the jury are instructed that the defendant was not a guarantor of the safety of its machinery, and was only bound to use ordinary care and prudence in the selection and arrangement and care thereof, and had a right to use and employ such as the experience of trade and manufacture sanctioned as reasonably safe." The instruction here given is in a large part identical with the language used by this court in Hough v. Railway Co., supra. The assignment of error is inexact in its statement that the court said in effect "that the defendant was bound to use and employ such machinery only `as the experience of trade and manufacture sanctioned as reasonable and safe.'" What the court said was, that the defendant "was only bound to use ordinary care and prudence in the selection and arrangement and care" of its machinery. In adding that the defendant had the right to use such machinery "as the experience of trade and manufacture sanctioned," the court imposed no additional obligation upon it, but relaxed the rigor of the rule in its favor. If there was any error in such relaxation the defendant could not complain of it. But taken in connection with the other instructions given by the court, on that question, we think the instruction as it stands was just and reasonable — at least not prejudicial to the defendant.

We repeat, we are of the opinion that all of the instructions sufficiently guarded the interests of the defendant, and that, in the language of the court below, "If there was any error, it was in too great an indulgence and relaxation of the law in its favor."

Nor do we see any error in the refusal of the court to grant all the instructions prayed for by the defendant. Such of them as were correct, as mere abstract propositions, had already been covered by the instructions which the court had given. The others, had they been granted, would, as conclusions of law, have bound the jury to render a verdict for the defendant.

For the foregoing reasons the judgment of the court below is

Affirmed.

MR. JUSTICE BREWER, not having been a member of the court at the time this case was considered, took no part in its decision.