62 Ill. App. 228 | Ill. App. Ct. | 1896
delivered the opinion of the Court.
The evidence does not justify the finding of the jury that there was no handhold on the top of the car from which appellee fell; on the contrary, all of the positive testimony as to this is, that there was such a handhold, and that it ran lengthwise of the car. The remaining allegations of negligence are that the handhold was improperly placed, and that there was a failure to properly inspect this car. It is insisted that the handhold was improperly placed. This is not a matter for the determination in its discretion by a jury. If it were, one jury might find that the handhold should have run lengthwise of the car, and that it was negligence to place it otherwise; while another jury might declare that handholds'should be put crosswise, and that any other form of construction was negligence; there would be no rule of safety or conduct by which either employer or employe could be guided.
Juries can not determine what method of construction shall be adopted, or what appliance shall be used. Titus v. Bradford, 136 Pa. St. 618.
The question of whether a more safe method or machine might not be provided, or is in use, is not presented to a jury, in an action brought by a servant to recover for injuries received because of the alleged negligence of a master. It is the duty of the master to use reasonable diligence to supply and keep for the use of the servant reasonably safe appliances and tools; he is not bound to supply the newest pattern or invention; he may furnish such as are ordinarily sufficient for the purpose used, and such as, with reasonable care, can be used without more danger than is ordinarily incident in the business, to those engaged therein. Bailey on Master and Servant, 14; Richardson v. Cooper, 38 Ill. 270; Southern Pac. Ry. v. Seely, 152 U. S. 145; Schroeder v. Mich. Car Co., 52 Mich. 132; Pittsburgh & C. R. R. Co. v. Sentmeyer, 92 Penn. St. 276; Lehigh Valley & Western Coal Co. v. Hayes, 128 Pa. St. 294.
The questions presented in this regard, to the jury, were: Was the appliance reasonably safe for use for the purpose intended ? Had the master exercised reasonable diligence to procure a reasonably safe appliance ? Was the handhold such as was in common use ?
And as to these, the burden of proof to show that the appliance was not reasonably fit and that the master had not used reasonable diligence to procure a reasonably fit appliance, is on him who charges a want of compliance with such duty. Ill. Cent. Ry. Co. v. Barslow, 55 Ill. App. 203.
A reasonably safe method of construction means one safe according to the usages, habits and ordinary risks of the business. Bailey on Master and Servant, 24.
It is the duty of an employer to conform to the rules and usages which prudent and careful men have established in the conduct of similar business under similar circumstances. Vinton v. Schwab, 32 Vt. 618.
Tested by these rules, in what respect, if any, was appellant shown to be negligent ? That very many freight cars having the handhold running lengthwise of the car were in common use, was shown; that a handhold running crosswise Avas more likely to trip and throAV a person Avalking from one car to another, was also proven; that the placing of handholds length Avise of the car had even been condemned, abandoned by prudent and careful roads, or been found to be more dangerous than another method, was not shoAvn. It may be said that the preponderance of the evidence is that the majority of cars other than those of the Merchants Dispatch Co. have the handhold running crosswise, but this is not sufficient to establish that the method adopted by that company was improper. It is said that the handhold should be parallel to the other rounds of the ladder on the car,- and usually is so. It Is not for the court or jury to determine the manner in Avhich the cars of a railroad shall be constructed; nevertheless, it is not improper for us to say that, if it appears that it was the duty of appellee to go from the engine back upon the freight cars of the train while it was in motion, it Avas the duty of appellant to use reasonable care in providing for him a reasonably safe way of, or aid to, his journey; that it seemingly invited him to make use of a ladder running up the Merchants Dispatch Co. car, placed by appellant next to the engine, and that while the appliance (ladder) of that car may have been reasonably safe for passage from one car to another, or from the ground to its top, the ladder may haAre been improper, not reasonably safe, for use in passing from the engine to this car.
Railroads are compelled to haul the cars of other roads, provided they appear to be in' an ordinarily safe and proper condition. As to their own cars, railroads choose which they will use; as to the cars of other companies, they have-no opportunity for selection; because of this, the duty of raihvays in respect to the cars of other roads, is merely that of proper inspection. The car in question not belonging to appellant, its duty was not to use reasonable diligence to have the same reasonably safe, but, before making use of it, to properly inspect it for the purpose of seeing if it was in a fit condition for use. Mackin v. Boston & Albany Ry. Co., 135 Mass. 201; Keith v. New Haven & N. R. R. Co., 140 Mass. 175; Kelly v. Abbott, 63 Wis. 307; Bailey on Master and Servant, 103.
The remarks of the court in the case of Sack v. Dolese, 137 Ill. 129, are not in respect to a railroad compelled to transport the cars of other roads, but in reference to the obligation of private individuals operating a stone quarry.
What was said in C., B. & Q. R. R. Co. v. Avery, 109 Ill. 314, 324, was in reference to an instruction by which the railroad sought to divest itself of liability by a contract it had made with another road, in the handling a car of which a servant was injured.
The jury in this case seemingly reached a verdict for the plaintiff upon the conclusion that there was no handhold upon the car off which appellee fell, a theory disapproved by the evidence.
The judgment of the Superior Court is reversed and the cause remanded.