114 F. 458 | 8th Cir. | 1902
Lead Opinion
after stating the case as above, delivered the opinion of the court.
Actionable negligence is a breach of duty. Where there is no breach of duty, there is no negligence, and there can be no recovery. It is not the duty of the master to furnish his servants with reasonably safe appliances, machinery, tools, or working places, or to keep them in a reasonably safe condition of repair. His failure to do .so is not the breach of any duty, and it furnishes no -basis for an action of negligence. The limit of his duty here is to exercise ordinary and reasonable care, having regard to the hazards of the service, to provide his employés with reasonably safe appliances, machinery, tools, and working places, and-to exercise ordinary and reasonable care to keep them in a reasonably safe condition of repair. Railway Co. v. Jarvi, 3 C. C. A. 433, 435, 436, 53 Fed. 65, 67, 68; Gowen v. Harley, 6 C. C. A. 190, 197, 56 Fed. 973, 980; Railway Co. v. Linney, 7 C. C. A. 656, 660, 59 Fed. 45, 48; Railway Co v. Needham, 69 Fed. 823, 825, 16 C. C. A. 457, 459; Railroad Co. v. Johnson, 81 Fed. 679, 680, 27 C. C. A. 367, 368; Railroad Co. v. Myers, 11 C. C. A. 439, 63 Fed. 793; Id., 22 C. C. A. 269, 76 Fed. 443. A servant may assume that his master has discharged this duty, unless he knows, or by the exercise of reasonable care he would háve known, that the duty had not been discharged, and that there were defects in the machinery and appliances with which, or in the place in which, he undertakes to work. On the other hand, the servant assumes all the ordinary risks and dangers of the employment upon which he enters, so far as they are known to him, and so far as they would have been known to a person of ordinary prudence and care by the exercise of ordinary diligence. He is not required to search for latent defects or hidden dangers, but it is his duty to exercise reasonable diligence to observe and be cognizant of all obvious defects in the machinery and appliances with which he is working; and he assumes the risks and dangers of all such defects of which he has knowledge, and of which he would have had knowledge by the exercise of ordinary care and diligence. Manufacturing Co. v. Erickson, 55 Fed. 943, 946, 5 C. C. A. 341, 344; Fordyce v. Edwards, 60 Ark. 438, 442, 30 S. W. 758; Anderson v. Railway Co., 39 Minn. 523, 41 N. W. 104; Railroad Co. v. Leverett, 48 Ark. 347, 3 S. W. 50, 3 Am. St. Rep. 230; Wormell v. Railroad Co., 79 Me. 405, 10 Atl. 49, 1 Am. St. Rep. 321; Way v. Railroad Co., 40 Iowa, 341; Batterson v. Railway, 53 Mich. 125, 18 N. W. 584; Illick v. Railway Co., 67 Mich. 632, 35 N. W. 708; Morton v. Railroad Co., 81 Mich. 435, 46 N. W. 111.
The plaintiff in this case alleged that his injury was caused by--the
Upon the question whether or not the engine could have been stopped after knowledge of the presence of the horse in the trestle in lime to prevent the accident, the testimony was not so clear that it was the duty of the court to withdraw this issue from the jury. Nor can it be properly said, as a matter of law, that the absence of this brake was not the proximate cause of the injury. It is undoubtedly true that one of the proximate causes of the accident was the negligence of the party who permitted the horse to stray into the” trestle. But if the injury would not have been inflicted if there had been a brake upon the engine, it cannot be truthfully said that the absence of this brake was not another of the proximate causes of the damage, inasmuch as the accident would not have happened if the brake had been provided. If it be true, as the jury have found, that no injury would have been inflicted upon the plaintiff if this engine had been provided with a brake, it is no defense for the railroad company that the concurring negligence of the owner of the horse contributed to the infliction of the injury. One is liable for an injury caused by the concurring negligence of himself and a third party to the same extent
Nor does the absence of brakes from this engine fall without the legal definition of the proximate cause of the injury which the plaintiff suffered. An injury that is the natural and probable consequence of an act of negligence is actionable, while one that could not have been foreseen nor reasonably anticipated as the probable result of such an act cannot be made the basis of an action for damages. The purpose of brakes upon engines and cars is to quickly arrest their speedy motion, and to prevent collisions and accidents. The natural and probable consequences of their absence from machines as powerful and as rapid in their movements as locomotive engines are the collisions and accidents which it is the purpose of their use to avoid. From the failure to provide this engine with proper brakes to arrest its motion, the accident and injury which resulted, or others of like character, might well have been anticipated as probable consequences; and the evidence in the record is ample to sustain the finding of the jury that the injury to the plaintiff was caused by that absence. The very fact that it is the common — the almost universal — practice to provide locomotive engines with brakes for the purpose of controlling their movements, and preventing accidents and collisions, is very persuasive, if not conclusive, evidence that such disasters may be reasonably anticipated as and are the probable consequences of their absence. Railway Co. v. Elliott, 55 Fed. 949, 5 C. C. A. 347, 20 L. R. A. 582; Railway Co. v. Kellogg, 94 U. S. 469, 475, 24 L. Ed. 256.
It is assigned as error that the court instructed the jury that the failure of the company to provide this engine with brakes was actionable negligence, for which the defendant was liable. But this specification is untenable. Actionable negligence in this case was the failure of the railroad company to exercise reasonable care to provide a reasonably safe engine for operation upon this railroad. The plaintiff testified that he had never worked upon an engine before which was not provided with a brake, although he had been in the employment of railroad companies for some years. The knowledge that it is the usual practice to provide road engines with brakes to control and arrest their motion is so common and general that courts cannot assume to be ignorant of it. Courts take judicial notice of
It is assigned as error that the court refused to instruct the jury that a servant is bound to take reasonable care and make reasonable effort to discover any dangers and defects in the place and machinery in which and with which lie is to work; that, the greater the risk which attends the work to be done and the machinery to be used, the more imperative is the obligation resting upon him; and that if the plaintiff could, by using ordinary care and diligence, have informed himself of the condition of the engine, as to brakes, and if he failed to do so, and an ordinarily prudent man, under like circumstances, would have done so, his failure to take such precautions was negligence, and would bar his recovery in the case. The rules which measured the respective liabilities of the plaintiff and the defendant in this case have been stated at the opening of this opinion. So far as this requested instruction conforms to those rules, it was given in the general charge of the court; and, so far as it does not conform to them, it was erroneous, and should not have been given. The court charged the jury that if the engine was without brakes, and this fact was unknown to the plaintiff, “and could not have been known to him by the exercise of reasonable diligence, under the circumstances of the case as shown by the evidence,” the company might be liable; and, when the entire charge is carefully read, nothing inconsistent with this declaration can be found in it. There was no error in the refusal of the court to give the requests under consideration, in view of the general charge, which presented to the jury all the sound propositions of law stated therein.
Counsel for the defendant also complain that, when the jury were sent to inspect the engine, the court instructed them to “go inside, and try to put themselves only in the same place that the fireman would naturally occupy, and then, occupying that place, to determine whether the wheels of the engine on which' the brakes would be could be seen from there, without looking for them, while a man was employed for several hours doing work on the engine as a fireman; that is to say, whether he could easily see'them by just keeping his eyes open.” If this excerpt from the instructions of the court had been all that was said to the jury on this subject, it might have been erroneous. But it was followed with the direction that “a man cannot shut his eyes, and ¿ay he don’t want to see anything which a reasonable man could not help but see if he kept his eyes open,” and that “if the fact that there were not any brake shoes on that engine was obvious to any reasonably prudent man who runs on it as a fireman for several hours, as the evidence shows that this plaintiff did for six hours, from Hulbert to Brinkley, before he went back again before the accident happened, that is perfectly obvious to a man who is fireman and traveling for six hours without hunting for it, then the court will tell you that he had knowledge of, and ought to have known of, it, and he is chargeable with it as if he had known it,” and that “if in getting off and on and
It is assigned as error that the court repeatedly instructed the jury that it was the duty of the company to furnish its servants with reasonably safe machinery and a reasonably safe working place. This instruction was a patent and unquestionable error. It has been so declared by this court repeatedly, from Railway Co. v. Jarvi, 3 C. C. A. 433, 435, 436, 53 Fed. 65, 67, 68, decided in 1892, through Gowen v Harley, 6 C. C. A. 190, 197, 56 Fed. 973, 980, Railway Co. v. Finney, 7 C. C. A. 656, 660, 59 Fed. 45, 48, Railway Co. v. Needham, 69 Fed. 823, 825, 16 C. C. A. 457, 459, to and including Lesser Cotton Co. v. St. Louis, I. M. & S. Ry. Co., 114 Fed. 133, decided in 1902. The limit of the duty of the master to the servant in the matter of place of service, of machinery, and of appliances, is to exercise ordinary care to furnish him with a reasonably safe place and reasonably safe appliances, and to use ordinary care to keep the place and the appliances in a reasonably safe condition. Moreover, the presumption is that error prodtic.es prejudice. It is only when it appears so clear as to be beyond doubt that the error challenged did not prejudice, and could not have prejudiced, the complaining party, that the rule that error without prejudice is no ground for reversal is applicable. Association v. Shryock, 20 C. C. A. 3, 11, 73 Fed. 774, 781; Railway Co. v. McClurg, 8 C. C. A. 322, 325, 326, 59 Fed. 860, 863; Deery v. Cray, 5 Wall. 795, 807, 808, 18 L. Ed. 653; Smiths v. Shoemaker, 17 Wall. 630, 639, 21 L. Ed. 717; Moores v. Bank, 104 U. S. 625, 630, 26 L. Ed. 870; Gilmer v. Higley, 110 U. S. 47, 50, 3 Sup. Ct. 471, 28 L. Ed. 62; Railroad Co. v. O’Brien, 119 U. S. 99, 103, 7 Sup. Ct. 118, 172, 30 L. Ed. 299; Mexia v. Oliver, 148 U. S. 664, 673, 13 Sup. Ct. 754, 37 L. Ed. 602; Railroad Co. v. O’Reilly, 158 U. S. 334, 337, 15 Sup. Ct. 830, 39 L. Ed. 1006; Peck v. Heurich, 167 U. S. 624, 629, 17 Sup. Ct. 927, 42 L. Ed. 302. But in the case at bar the record makes it clear beyond all doubt that this error did not prejudice, and could not have prejudiced, the railroad company, because no question concerning its duty or its negligence was left to the jury to consider by the charge of the court. The railroad company conceded that there were no brakes upon the engine. The absence of brakes upon this road engine, in the absence of any evidence excusing it, was conclusive evidence, as a matter of law, of the lack of ordinary care to provide reasonably safe machinery to operate this railroad. The court clearly and pos
There are other specifications of error which have not been recited in detail. They have all been carefully considered. So far as they present any debatable question, they have been disposed of by the rules and principles to which we have adverted, and the discussion in which we have already indulged. Suffice it to say that a patient and painstaking review of all the evidence, of the charge of the court, and of all the assignments of error, has led us to the conclusion that this case was fairly and impartially tried, and that the rulings and charge of the court were free from prejudicial error. The judgment below must therefore be affirmed, and it is so ordered.
Concurrence Opinion
I concur in the order affirming the judgment below for the reasons stated in the foregoing opinion, but I would not be understood as concurring in the broad statement, which the opinion contains, that a servant “assumes the risks and dangers of all * * * defects [in machinery and appliances] of which he has knowledge, and of which he would have had, knowledge by the exercise of ordinary care and diligence.” Nor do I think that such a broad statement of the law is necessary to a correct decision of the case. It is well settled that a servant who uses machinery, tools, or appliances known to be defective, but, in pursuance of a promise by the master that they will be repaired, does not assume the risk of injury, but may recover if hurt, excepting where the risk of injury is so imminent that a prudent person would not have used them at all. And I conceive that there may be other exceptions to the rule. Hough v. Railway Co., 100 U. S. 213, 225, 25 L. Ed. 612, and cases cited; Mining Co. v. Fullerton, 16 C. C. A. 545, 549, 69 Fed. 923. See, also, Southern Pac. Co. v. Yeargin, 48 C. C. A. 497, 109 Fed. 436, 441.
CAEDWELL, Circuit Judge, joins in the views expressed in this concurrence.