127 P. 518 | Cal. Ct. App. | 1912
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *636 Respondent was awarded by a jury a verdict for $5,000 for personal injuries received while employed in filling buckets with coal in the hold of a vessel belonging to appellant. The circumstances of the accident, the extent of the damage and the particular ground for charging responsibility to defendant are disclosed in the following allegations of the complaint:
"That on said twenty-sixth day of March, 1907, while plaintiff was so employed by defendant and while he was so engaged in the performance of the duty for which he was employed, to wit, filling said buckets with coal in the hold of said vessel, defendant was hoisting from the hold of said vessel one of said buckets filled with coal, and the same over-turned above said hatchway and at a great height, to wit, *637 seventy-five feet above and directly over the place in said hold where plaintiff was working, and the contents of said bucket, to wit, over one thousand pounds of coal, fell upon and around said plaintiff, and broke and splintered the bones of one of plaintiff's legs so badly that part of said bones had to be removed, and broke two of plaintiff's ribs, and otherwise greatly bruised and injured plaintiff and thereby caused him great pain and suffering.
"That said bucket which overturned and emptied its contents upon plaintiff as aforesaid was at the time, and long prior thereto, defective and broken; that the rim on the upper rear part of said bucket was cracked, thereby causing the latch which is fastened to the bale of said bucket at one end, and to the clutch on the rear of said bucket at the other, and which prevents said bucket from dumping before reaching the defendant's bunkers, to become loosened and thereby causing said bucket to overturn in midair."
It is also alleged that the defendant had knowledge of the defective condition of the bucket, but negligently continued to use it till plaintiff was injured. The answer expressly admitted the employment and the allegations concerning the nature of the work, the character of the accident and the extent of the injury, but denied the other material averments of the complaint and set up as an affirmative defense that the injury was caused by the fault and negligence of the plaintiff, and, furthermore, that said injury was chargeable to the risks of plaintiff's employment at the time of the accident, "which said risks had been and were duly assumed by the plaintiff."
From the standpoint of respondent the case involves primarily the application of the familiar legal doctrine, declared in the decisions over and over again, that it is the duty of the master to furnish reasonably safe appliances to the servant for the prosecution of his work and to exercise reasonable care in keeping said appliances in a safe condition for use, and if an injury results to the servant from the failure of the master to perform this duty, the latter is liable for the consequences. Speaking generally, it may be said that in the record there is found ample support for this theory of respondent. From the direct and circumstantial evidence a rational inference may be drawn that the said coal bucket *638 was defective as alleged in the complaint, but it was furnished to plaintiff in that condition by appellant; that the defect was of such character as to render it unsafe to use the bucket for the purpose intended; in other words, that it was not reasonably safe to operate it as plaintiff was required to do in the prosecution of his work, and that the accident with the consequent injury would not have occurred had it not been for said defect. But, of course, it does not necessarily follow that plaintiff was entitled to recover. However, in reference to the affirmative defenses of appellant, it is confidently believed, that the jury was justified in holding that the accident was not due to any contributory negligence of plaintiff, and that, in a legal sense, there was no such assumption of risk by him as to relieve defendant from liability.
These considerations will receive more specific attention as notice is given to the various contentions of appellant.
Of these, in the foreground of the discussion and manifestly constituting a proposition of vital importance in the determination of the appeal, the assertion is made by counsel that the case comes within the rule, "that where a master provides and keeps proper tools or appliances for the use of his servants and delegates to them the duty of selecting such as they require, then the master is not responsible if the servant voluntarily uses a tool or appliance that has become obviously defective and unfit for use, and is injured by reason thereof."
Concerning this statement of the rule and the propriety of invoking it in the case before us, several suggestions seem not inappropriate. In passing, it may be said that there is some inaccuracy in the language used. It rather implies that if the master provides and keeps only proper tools or appliances for the use of the servant, and the servant voluntarily selects therefrom one obviously unfit, the master is not liable. Where only proper tools are supplied, it is manifest that no room can be found for the unfit. But, interpreting the rule, as no doubt intended, to contemplate the case where a proper tool has become unfit from use and is then selected by the servant, it is clear, upon principle and under the authorities, that the rule must be applied with great caution. Otherwise, we will find the problem embarrassed by the presence of two antagonistic and irreconcilable principles. Since the master *639 is bound to furnish suitable tools and appliances, the servant may assume, of course, that the master will perform that legal and moral duty. It necessarily follows that the servant does not assume the risk that comes from the use of unfit and improper appliances. Nor is the servant required to distrust the fidelity of the master to this obligation, nor does the law demand of the servant that he make an examination or inquiry at his peril to ascertain the fitness of the tool or appliance for the work intended. This would be in contravention of the doctrine of the master's responsibility for the character of the tools. Of course, however, the law, as well as common sense and common justice, demands that the servant shall comport himself as upright and reasonable men ordinarily do, and if he discovers the unfitness of the appliance and appreciates the danger incident to its use and, nevertheless, he continues without complaint in the prosecution of the work and injury results, the law, in consonance with the judgment of fair-minded men, exacts of him the penalty for his folly, and attributes the consequences to his own negligence rather than to that of the master. Furthermore, there may be instances where the defect or unfitness of the appliance is so palpable and obtrusive and the danger incident to its use, under the circumstances disclosed, so palpable, that knowledge of these facts, even in the absence of direct evidence to that effect, must be imputed to the servant. No circumstance, however, should be permitted to obscure or derogate from the importance of the initial and primary obligation of the master to furnish suitable tools and appliances.
It may be well to notice how the subject has been treated by some of the authorities.
In Bailey's Personal Injuries, volume 1, section 251, it is said: "It is well settled that it is the duty of the master to provide suitable and safe machinery and appliances for the use of his operatives, and it is also settled that the duty does not stop here, but that it is likewise his duty to keep such machinery in proper repair and in safe working order, and if these duties or any of them are negligently performed, and one of the servants thereby sustains an injury, the master is liable, even though he may have intrusted the performance of such duties to subordinates, by whatever name they may be called." *640
In Shearman and Redfield on Negligence, fifth edition, section 194, the authors, after stating the familiar personal duty of the master to furnish proper tools and implements, declare: "The master is not entitled to time to discover defects in things which are defective when put in use. He should examine them before putting them in use. He cannot evade his responsibility in these respects by simply giving general orders that servants shall examine for themselves, before using the place, materials, etc., furnished by him." In section 194a it is said: "The master is also personally bound, from time to time, to inspect and examine all instrumentalities furnished by him, and to use ordinary care, diligence and skill to keep them in good and safe condition."
In Daves v. Southern Pac. Co.,
Respondent's classification of the cases upon the subject, while probably somewhat arbitrary, possesses merit, and it may be of assistance in the consideration of apparently conflicting decisions. It is thus claimed that "the cases where the servant is injured as a result of some defect in appliances furnished by the master fall into three general classes as follows: 1. Where there are defects or breaks in appliances furnished by the master which should not be defective or broken. Such is the case here. 2. Where the injury results from some defect in the adjustment or preparation of the appliance, and where the adjustment or preparation is to be done by the servant, and is a part of the work that he is employed to do; obviously different from the case at bar. 3. Where the defect in the appliance is one necessarily attendant upon the use of *641
the appliance and which is usually repaired by the workman himself and to repair which suitable materials are supplied, or where the appliance is of such a character that the use of it results in a gradual deterioration which ultimately renders it unsafe, as for example, the wearing of a rope, the loosening of a bolt or the dulling of an instrument — also clearly different from the case at bar." Under the first class are cited the following cases: Jager v. California Bridge Co.,
In the second class are placed the following cases cited by appellant: Burns v. Sennett,
The other cases cited by appellant are assigned by respondent to the third class, of which we mention only those from this state, as follows: Callan v. Bull,
But there are certain vital facts, deducible from the view that we must take of the evidence, some of which will be specified, that render it clear that the rule of the Towne case has no application here. One decisive circumstance is that the bucket, in its defective condition, was furnished by appellant to plaintiff when he began his work. We have a right to infer that it was not selected by plaintiff, furthermore that it was not his duty to select it, and that there was no change in its condition during his employment. The accident occurred the day he was employed and when he began his work, and the manner in which the defective tub was supplied is related by the witness Carlson as follows: "I was not foreman in the hatch where plaintiff was working, but I was foreman on the other hatch. When I found that tub was broken, I took it *644
out of the hatch and landed it on the deck. That was the first day we started to work on that steamer. Hayes was hurt the next day. Before he was hurt, Ben Cline's gang came and took that tub from the deck where I had put it and went aft to their hatch. Ben Cline was foreman of the Hayes gang. I do not know what that gang did with the tub after I saw it run to their own hatch. Q. And it was while Cline had the gang of men unloading coal from the hatch next to yourself that he came and took that tub away, was it? A. Yes, sir." There is no evidence that Hayes was among the "gang" that took the tub. From circumstances which we will not stop to detail it is fairly inferable that he was not. But, at any rate, the tub was placed on the deck by the foreman of one hatch, who knew and apparently gave no warning of its defective condition, whence the bucket was taken, under the direction of the foreman of the hatch in which plaintiff was employed and there put to use without the latter's attention having been called to any defect or unfitness in said appliance. The jury were justified in concluding that it was the duty and the custom of the foreman of the hatch to obtain and supply the buckets for the use of the workmen, and they were correctly instructed that the obligation of the master to furnish suitable appliances and to keep them in repair and order "is a duty which cannot be delegated to another, so as to exonerate the employer from liability to an employee who is injured by omission to perform the duty or by its negligent performance. In respect to such act or duty, the servant who undertakes or omits to perform it is the representative of the master. The act or omission is the act or omission of the master, irrespective of the grade of the servant whose negligence caused the injury, or of the fact whether it was or was not practicable for the master to act himself." (Higgins v. Williams,
Again, the burden was upon appellant to show that respondent actually had or ought to have had knowledge of the defective condition of said bucket. From the record we can say that neither inference is so imperative as to exclude any other rational conclusion. Indeed, there is no direct evidence upon the subject of plaintiff's actual knowledge, neither party having seen fit, apparently, to question him concerning it. *645 One of the fellow-workmen, so he testified, discovered the defect before the accident occurred, but there is no evidence that he directed to it in any manner the attention of respondent, nor can we say that the blemish was so obvious as to require plaintiff to be held to the responsibility of actual knowledge. On the contrary, incomplete as the record is in this respect, considering the fact that plaintiff was at work in the hold of the vessel and for only a few hours, with nothing apparently to excite his special attention to the bucket or to arouse his suspicions, the inference is quite fair and reasonable and not subject to legal stricture, that he was without knowledge of said imperfection.
In brief, therefore, under the settled principles of appellate practice, the record presents us the case of a master furnishing his servant with a defective appliance, not only with the presumption of knowledge which the law imposes, but with actual knowledge of its unfitness, and giving no information of its condition to the servant, who does not know and is not required to know that the appliance is otherwise than normal, and injury subsequently resulting from the use of said appliance. Hence, the general rule contended for by respondent is rendered clearly applicable.
Besides, the law of the servant's responsibility in operation at the time of this accident was somewhat different from its condition when the Towne case was decided. In 1907 section 1970 of the Civil Code was amended, in addition to other respects, by adding the provision that "Knowledge by an employee injured of the defective or unsafe character or condition of any machinery, ways, appliances or structures of such employer shall not be a bar to recovery for any injury or death caused thereby, unless it shall also appear that such employee fully understood, comprehended and appreciated the dangers incident to the use of such defective machinery, ways, appliances or structures, and thereafter consented to use the same, or continued in the use of the same."
There is not only no evidence that plaintiff "fully understood, comprehended and appreciated" the dangers incident to the use of said defective bucket, but it is quite reasonable to hold that if he knew of the defect, he believed there was no additional danger incident thereto. Indeed, defendant denied under oath not only that the bucket was broken or defective, *646 but also that it ever turned by reason of any broken or defective condition, and an effort was made at the trial to show that the defect did not add to the peril of plaintiff's situation. Legally, respondent had as much right as appellant to be mistaken in that particular.
This effort to prove that the bucket could be safely operated has given rise to one point of controversy in reference to a ruling of the court. The witness Olinder, a blacksmith, who had been in the employ of defendant for several years and whose duty it was to repair the tubs and machinery generally, after stating that following the accident he discovered that a bolt was missing from the tub, was asked the question: "Will the absence of the bolt produce such a looseness that it would dump?" Assuming that the question involved a matter of expert testimony, it is entirely apparent, as pointed out by respondent, that the ruling sustaining an objection was not prejudicially erroneous for the reason that plaintiff in his complaint did not count upon any such defect, and for the reason that the ground was entirely covered by the witness in answer to other questions.
There are two assignments of error in relation to the instructions.
As we understand the law of negligence, one phase of it was correctly given by the court as follows: "While the servant assumes all the ordinary risks of the business in which he is employed, he does not, by reason of his employment, assume the risk of defective premises, machinery or structures furnished by the master, if the defect was either known to the master, or could have been discovered by the master by a reasonably careful inspection." Appellant's objection to the instruction is stated in this language: "This instruction tells the jury that the defendant is liable in this case if they find that its tub was defective, and that it knew of or could have discovered the defect by a reasonably careful inspection, and that the plaintiff did not assume the ordinary risks of the business which were known to the defendant or could have been discovered by him."
In this appellant is clearly in error. The court was not dealing with the ordinary risks of the business, but with theextraordinary condition occasioned by the act of the master in supplying defective appliances. Since it is the duty of the *647 master to furnish safe appliances, he must be primarily and legally accountable for the consequences of his failure to observe his duty in that respect. The other contingency suggested by appellant was covered by the court in additional instructions, one of which contained this statement: "An employer is not bound to indemnify his employee for losses suffered by the employee in consequence of the ordinary risks of the business in which he is employed."
Appellant complains of the action of the court in refusing to give the following instruction: "If you find from the evidence that the tubs furnished for the use of the defendant's employees were of the kind ordinarily used for the purpose by employers in the same line of business in the community, and if you find that the defendant at the time complained of employed a blacksmith to keep the tubs in repair, and if you further find the defendant kept on hand a number of tubs in good repair, ready for use, any one of which could have been had and used by the employees at the time complained of, and if you further find, that it was the duty of defendant's employees to select for use tubs in good repair and discontinue the use of any tub that became defective while in use, then I charge you that the defendant performed its whole duty toward the plaintiff, and is not responsible in this case, even though you find that the employees selected for use a defective tub from among those in good repair kept on hand by defendant, or even though you find that the employees continued to use a tub after it became obviously defective. In such case your verdict must be for the defendant." There are several objections to the instruction, as suggested by respondent. Probably the vital one is that it ignores and virtually nullifies the importance of the duty of the master in the first place to furnish suitable appliances. It also implies that he may relieve himself of this responsibility by delegating the task to an employee, although another employee in a different line of work may be injured in consequence of the act of the one who represents the principal in the selection of the appliance. There is a formal objection also that it lacks simplicity and was likely to be misunderstood by the jury. Again, it is apparent that the particular phase of the law of negligence intended to be reached by said instruction was fully covered by other instructions which were certainly *648 exceedingly favorable to appellant. Indeed, the charge of the court, taken in its entirety, seems to have left nothing lacking for the faithful guidance of the jury.
We are convinced that there is support in the evidence for the negative answer of the jury to the question: "Do you find from the evidence that it was the duty of the stevedores employed by the defendant to select a tub or tubs that they were to use in their work from a number of tubs in good repair kept on hand by the defendant?" But even if not supported, the circumstance would not require a reversal of the case, since the general verdict could be sustained upon the theory of defendant's negligence in leaving the defective bucket upon the deck of the vessel, whence it was taken and put into use in the hold.
It would be pleasing to follow more closely and completely the interesting argument of counsel, but the length of this opinion already invites apology.
The judgment and order are affirmed.
Chipman, P. J., and Hart, J., concurred.