8 S.E.2d 413 | Ga. Ct. App. | 1940
Lead Opinion
1. It is the duty of a master to furnish his servant a safe appliance with which to perform the duties of his employment.
2. An employee, in using a defective appliance furnished him by the master, does not necessarily assume the risk incidental thereto, where he is assured by the master that the appliance is in a safe and proper condition for use.
3. In an action for injuries to a servant resulting from his compliance with a direct and specific command of the master given with reference to an instrumentality by which the master's work is to be performed, the danger or risk incurred by the servant is not assumed by virtue of employment, unless it involves a violation of law or the act required is so obviously dangerous that no person of ordinary prudence would undertake to perform it.
4. In a suit by a railroad employee against his employers to recover for personal injuries resulting from the use by the plaintiff of a motor track-car with defective brakes, where it appears that the plaintiff's superior directed him to use the particular car in the performance of the duties of his employment, assuring him that the car was in a safe and good condition for use, and where the plaintiff in using such car in the performance of his duties collided with an automobile at a railroad crossing, resulting in injury to him, and where it appears that the plaintiff applied the brakes to the car in time to have stopped it before it reached the crossing and avoided the collision, but because of such defective brakes he was unable to do so, the jury were authorized to find that the defendants were liable to the plaintiff for furnishing him a car with defective or improper brakes, in the use of which the plaintiff was injured.
The plaintiff also alleged that he was operating the track-car at around twenty-five miles an hour upon approaching this crossing. The plaintiff in his petition alleged that the defendants owed him the following duties: To have furnished petitioner "with a safe hand-car and one with good and not defective brakes, and one the brakes would stop in a much shorter distance than fifty feet, when running at a speed not in excess of twenty-five miles an hour. . . A safe place to work, and to have made safe and keep in a safe discernible condition said Pylant's Crossing. . . To have truthfully informed petitioner of the true condition of said hand-car as to its brakes, and the defective and unsafe condition of its tracks over which he was ordered to run said car, and of the unsafe and dangerous condition of Pylant's Crossing thereon. . . Not to furnish him with a defective motor-driven car . . unfit for the service and use he was ordered and required to put it to, the brakes thereof being worn and not performing their ordinary functions when used in the usual manner and way in that they failed to and would not stop said car or act as a brake thereto. . . To have exercised ordinary care to furnish petitioner a motor-car . . equal in kind to that in general use and reasonably safe to be operated. . . Not to have deceived petitioner as to the condition of said track-car being in good condition and safe, as it was represented to petitioner to be by said supervisor, West . . when as a matter of fact said car had . . worn, unworkable, and defective brakes; brakes that would not stop said car in a reasonable and in a short distance when applied." The plaintiff further alleged that the defendants failed and neglected to comply with these duties and were negligent in the following particulars: (a) In ordering him to move the defective car, under the circumstances, from Camak to Harlem; (b) in not informing the plaintiff of the defective condition of the brakes of the car; (c) in deceiving plaintiff into believing, by relying on the representation of the defendants' servant, West, the superior of the plaintiff, that the car was safe and in good condition; (d) in not keeping Pylant's Crossing in a safe condition and in failing to warn the plaintiff of its unsafe and dangerous condition; (e) in furnishing the plaintiff with a defective motor-car "unfit for the use ordered, the brakes thereof being worn and not performing and . . not responding to the petitioner's effort to stop the car" within about fifty feet, being *440 the distance from which the automobile truck was first seen by him; (f) "in equipping said motor-car with the character of brakes lever made of metallic material of the springy nature the said car was equipped with, so that said lever brake when forcibly pulled against would and did act as a spring, tending to and throwing forward petitioner, when and in the event said car when trying to be stopped by the application of the brakes, by the use of said lever, struck an obstruction such as the said automobile truck;" (g) in not exercising ordinary care to furnish the plaintiff with a motor-car equal in kind to that in general use and reasonably safe to be operated by him on the occasion in question; (h) in furnishing him with a motor-car with practically no brakes and with brakes so defective that it could not be stopped within a fifty-foot distance when running at a speed of about twenty miles an hour; (i) in allowing Pylant's Crossing to be grown up in weeds and bushes, thereby obstructing the view of the crossing and in not keeping the crossing clear and readily observable to persons using the railroad tracks. The plaintiff further alleged that the motor-car had been in the possession of the defendants for many months and under the direct care and supervision of the track supervisor, West, and that the defendant knew or should have known of the defective condition thereof and that the plaintiff did not have "equal means with the defendant or of said West . . of knowing of such defective condition . . and could not by the exercise of ordinary care have known thereof, and did not know thereof;" and that he took the motor-car and started from Camak according to the orders given him and "it was then unknown to him that it was equipped with defective brakes."
The defendants demurred to the petition and to the judgment overruling their demurrers they excepted pendente lite. The defendants answered, denying liability, and alleged that the collision between the truck and the track-car was caused by the plaintiff's negligence in violating instructions as to the method of operating the car; that in view of the circumstances and conditions obscuring the plaintiff's vision in front of him he operated the track-car in approaching this crossing at a negligent rate of speed; and that the condition of the brakes of the car, if they were defective, was one which could have been ascertained by the plaintiff in the exercise of ordinary care, or that such condition was discovered and *441 the plaintiff failed to exercise the necessary diligence required in regard thereto. The case proceeded to trial before a jury. The plaintiff introduced evidence tending to establish the case laid in his petition. The plaintiff testified, in part as follows: "The brakes that I put on was pulled with my left hand. . . I was sitting behind the brake of the car I was using and had to pull it back to me. When I hit the truck the contact released the brakes. The brake lever acted as a spring and pitched me ahead of the car. . . If the brakes on that car had been in good condition, I could have stopped before I hit the truck. The brakes are underneath that car. In order to inspect the brakes and find out what kind of condition they are in, you would have to look under the car. I did not examine them that day. I do not know of any of the negroes examining them because I took it for granted in that W. D. West said that the car was all right and in good running condition. That is the reason I made no inspection of it." The plaintiff testified that he could not run his section without a motor-car and that he went to West, the track supervisor of the defendants under whom the plaintiff worked, and who was his "boss," and informed him of this, and that West made this statement: "There is one on the platform. You can get your men and come and get it." West then stated that the car was "in good condition" and "all right." The plaintiff further testified: "I did not put on the brakes until I got to Pylant's Crossing. . . I crossed four or five crossings and slowed up at each crossing. The brakes on this car apply on the wheels. The brake shoes are applied to the wheels. They were not in good condition. I could see them. The matter with them was they were worn out. . . The belting was worn out. I suppose that was the only thing wrong with the brakes. You can move the lever with your hand. . . I know about brake mechanism. As you approach the car you can see part of the brakes. The wheels of the car are hidden by the side. As you walk up to the car you can see the wheels by getting down. If you are ten feet off you can see the wheels. The brakes are about the middle of the wheels. If there is no brake shoe, the brake will not all the time apply to the wheel. The brakes apply when the lever is pulled with a brake beam underneath. When you pull the lever it expands the brake on all four wheels. I guess there was nothing wrong with the brakes except the shoes. . . I did not get down and examine *442 the car because Mr. West had said the car was in good condition. . . I did all I could to stop the car. I could not tell whether the brakes were all right without getting under the car and making an inspection. The brakes were no good. They would not stop the car. I saw it [the automobile truck] fifty feet before I got to it. If the brakes had been all right I could have stopped before I got to the truck. I did everything I could to stop."
The plaintiff further testified as follows: "I came through a cut going about twenty miles an hour, saw a truck coming out of the hillside. I was then about fifty feet of the truck. I turned loose everything and grabbed the brakes and swung back with all my might and it did not stop the car. That was at Pylant's Crossing, in this county, where the public road crosses the railroad. . . I was fifty feet from the truck when I first saw it on the crossing. . . If the brakes on that car had been in good condition I could have stopped before I hit the truck. I did not stop because the brakes would not hold. . . Pylant's Crossing was a very narrow crossing and coming down to the track on sides there is an incline coming to the crossing. Mike Norris was coming from the north side to the south. I did not know that crossing was there. I was not familiar with that part of the roadbed of the railroad. I don't work on that part. The crossing was growed up with growth up the embankment. There is an embankment there. The worst one is on the north, one on the south too. There is an embankment on the highway on both sides, but it is worse on the east side. The highway goes through a hillside. The railroad right of way from one embankment to the other is about eighteen feet. The grass and bushes are about as high as your head. The height of the embankment is way above a man's head. I could not see the embankment sitting on the hand-car. The grass and bushes grew right up to the end of the ties. The public road that crosses the railroad is about six feet wide. The highway comes down a right smart incline to the railroad. At that time it was a dangerous crossing. . . There are four or five crossings between Mr. Chambers' and Pylant's Crossing. My instructions are to approach crossings so I can stop. . . I did not put on brakes until I got to Pylant's Crossing. I crossed four or five crossings, and slowed up at each crossing. I did not know a crossing could be there. Mr. West did not tell me to stop for anything. . . I could not see *443 behind the bushes. I did not know whether there was a crossing there or not. If there was a crossing there, it should have been where a man could have seen it. I have been up and down railroad tracks thirty years. I know what is meant by a whistle-post sign. A pole with a cross arm on it standing by the side of the road is a crossing sign. If I had seen a large pole with a cross arm on it I would have known it was a crossing. I did not see those signs at this crossing. . . I was facing the rising sun. . . I knew I could not see as well with the sun and mist as I could without. I could not sit down and wait for the sun to get up. I knew I could not see as well with the sun in my eyes as I could without it. It is in my petition that the reason I could not see the railroad crossing was that the sun was in my eyes and the mist was there. The railroad expects you to go on if it is as dark as pitch. If you want to hold your job, you had better go on. If I had known the crossing was there, I would have slowed down for it. I was in entire charge and control of the situation. I am not responsible for what appears ahead of me. . . I have attended several of the safety meetings which the chief engineer holds. I was not told that I was entirely responsible for motor cars approaching crossings. We have had bulletins to be careful; to approach crossings so that you could stop at any point before you reach the crossing. . . I slowed down when I crossed those crossings before I got to Pylant's Crossing. . . I operate the car with the left hand and drop down that lever and it breaks the speed of the car until close enough to see each way. . . The weeds and bushes were on the railroad's right of way. . . If I saw a clump of bushes I would not have presumed that there was a crossing there. The presumption is that there is not a crossing there. If it had not been for the sun and mist I could not have seen the crossing or truck any quicker. The blow post is put up for the engineer's signal. . . As I was coming down the track I was watching the track. It is the duty of the section foreman to watch the rails. If I had looked at the blow post I would have had to take my eyes off the rails. The blow post is up nine or ten feet in the air. I don't know why it was put so high. If it had been put there for a man on a hand-car, it would not have been put that high. That hand-car is about three feet from the rails to the top of the side. The cab of an ordinary locomotive is twelve *444 or fifteen feet. The blow post is put there for the locomotive. The growth had grown up the embankment. The public road signs are twenty feet from the track, if there was such a sign, that would place the sign back out of my vision. If the brakes had been all right I could have stopped before I got to the truck. I did everything I could to stop. The blow-post west of the crossing is four hundred feet from Pylant's Crossing. There is another crossing up there. That blow-post west of Pylant's Crossing is about three hundred feet. I noticed the bottom part of the blow post as I passed it. I did not know what crossing the blow-post was put up there for. I am not and never have been an engineer. I passed a crossing just before I got to that blow post. I did not know what crossing that blow post was put there for. . . I believe I know that blow posts have marks only on one side."
Evidence introduced by the defendants tended to establish the allegations of their answer. The track supervisor, West, in his testimony did not deny that he told the plaintiff that the car was in a good and safe condition, but he testified that he did not tell the plaintiff that the brakes were in a good and proper condition. The jury returned a verdict for the plaintiff for $3543. The defendants moved for a new trial on the general grounds only. The court overruled the motion, and the defendants excepted. 1. The plaintiff alleges that the brakes were defective and were not in proper working order, that West, the defendants' track supervisor, directed the plaintiff to use the motor track-car, assuring him that it was in a safe and proper condition, and that relying thereon the plaintiff used the car. He further alleged that when he was within fifty feet of the crossing where the collision occurred, and discovered the approaching automobile, he immediately undertook to stop the car with the hand brakes, but on account of their inadequacy, defectiveness, and improper working condition the brakes would not hold and he was unable to stop the car and avert the collision. "The master is bound to exercise ordinary care . . in furnishing machinery equal in kind to that in general use, and reasonably safe for all persons who operate it with ordinary care *445 and diligence. If there are latent defects in machinery, . . unknown to the servant, of which the master knows or ought to know, he shall give the servant warning in respect thereto." Code, § 66-301. "A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself. In suits for injuries arising from the negligence of the master in failing to comply with the duties imposed by section 66-301, in order that the servant may recover it must appear that the master knew or ought to have known . . of the defects or danger in the machinery supplied; and it must also appear that the servant injured did not know and had not equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof." Code, § 66-303. "Every common carrier by railroad shall be liable in damages to any person suffering injury while he is employed by such carrier, . . from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defects or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment: Provided, nevertheless, no recovery shall be had hereunder if the person killed or injured brought about his death or injury by his own carelessness amounting to a failure to exercise ordinary care; or if he, by the exercise of ordinary care, could have avoided the consequences of the defendant's negligence. . . If death shall not result from the injury, the presumption of negligence shall be and remain as provided by law in cases of injury received by an employee in the service of a railroad company." Code, § 66-401.
It appears from the allegations of the petition that when the plaintiff went to the track supervisor and reported the wreck of the motor-car used by him in the performance of the duties of his employment, this servant of the defendants ordered the plaintiff to use the car which he was operating at the time he was injured, and assured the plaintiff that such car was in a safe and proper condition for use. Under this state of facts, the plaintiff, in using the car with the defective brakes did not necessarily assume the risk incidental to the defective condition of the brakes. It could be inferred therefrom that the defendants, by the assurance made to the plaintiff, thus assumed any liability which might result from their negligence in furnishing to the plaintiff a car with brakes *446
in a defective condition. See Atlantic Coast Line R. Co. v.Frierson,
But the defendants contend that the petition shows that the defective condition of the brakes was patent, and that such condition "could have been discovered by the plaintiff as well as by the defendant; and if both the plaintiff and the defendant had equal opportunities of discovering this patent defect in the appliance on the day the accident occurred, then the defendant would not be liable for an injury resulting therefrom." Stewart
v. Seaboard Air-Line Ry.,
"In an action for injury to a servant, resulting from his compliance with a direct and specific command of the master, given with reference to the manner, means, or instrumentality by which the master's work is to be performed, it is a question for the jury whether the risk involved in obeying the order is an ordinary hazard such as was assumed by virtue of the servant's employment, or whether under the existing circumstances the command was a negligent one, . . that is, where the circumstances are such that the master has either actual or constructive knowledge that a compliance with the command will be attended with unusual and unnecessary peril, — the danger incurred by the servant in obeying the order will not be taken to have been assumed by virtue of the employment, since `a servant is bound to obey the order of his master unless the command includes a violation of the law, or the act required is so obviously dangerous that no person of ordinary prudence would undertake to perform it.' [Citing.] . . Even where under the circumstances the master neither has nor is chargeable with knowledge of the unusual and unnecessary risk involved in a compliance with such a command, and consequently the command would not ordinarily be taken to be a negligent one, yet where the order is accompanied with an express or plainly implied assurance of safety to the servant in a compliance therewith, the law implies a quasi new agreement to have been made whereby the master relieves the servant of his former assumption, and, in an action by theservant for injuries thus occasioned, the master is not entitledto rely upon the servant's assumption of risk as a defense. Bush
v. West Yellow Pine Co.,
The petition does not show that the defective condition of these brakes was so patent and obviously dangerous that no person of ordinary prudence would undertake to use the car. The fact that it appears from the petition that the plaintiff had driven this car from Camak to the place where the collision occurred does not authorize this court to assume that the plaintiff must have used the *448 brakes in that he had evidently had to pass over public crossings between Camak and Pylant's Crossing, where the collision occurred, and therefore either discovered, or should have discovered the defective condition of the brakes.
It is the duty, as we have seen, of a master to furnish to his employee a safe appliance with which to perform the duties of his employment. Henderson v. Ocean Steamship Co.,
The duty rested upon the defendants to furnish to the plaintiff employee a safe place to work with reference to its tracks and right of way, where the performance of his duties necessitated his use of its tracks and right of way. See Code, § 66-401. The defendants were under a duty to observe all ordinary and reasonable precautions to keep their track and right of way in such condition that their employees engaged in the performance of their duties along and upon the tracks could safely discharge those duties, and if by the neglect of the defendants the track and right of way became unsafe, and the plaintiff in the exercise of due care for his safety was injured as a result of the defendants' negligence, he may recover. It is alleged that the plaintiff was not aware of the existence of the public crossing at the place where he was injured, which was hidden from his view by the rank undergrowth along the right of way of the defendants at this point, and also by an embankment on each side of the railroad tracks, and that the plaintiff was thus prevented from observing the crossing and the automobile approaching the crossing until he was within about fifty feet of the crossing, and did not have time to avoid the collision, the brakes of the car failing to work properly and to stop the car within fifty feet. The plaintiff had a right to assume that the track and right of way were not dangerous. It does not appear as a matter of law that the plaintiff failed to exercise due care for his own safety in assuming *450
that he could safely proceed forward at this point. In this connection see Central Railroad Co. v. Mitchell,
2. But the defendants urged that the verdict was not authorized by the evidence and was contrary to law. They insist that the evidence shows without contradiction that the plaintiff was injured because of his own carelessness amounting to a failure to exercise *451
ordinary care, or that if the plaintiff had exercised ordinary care for his own safety he could have avoided the consequences of the negligence of the defendants, if they were negligent. The defendants rely on the decision in Southern Ry. Co. v.Taylor,
Further, the defendants contend, that, "even if there were such a negligent order," the plaintiff "knew of the peril of complying with it, or had equal means of knowing the peril, or, by the exercise of ordinary care, might have known" thereof. The defective condition of the car relative to its brakes was not so patent and obvious that the use of the car by the plaintiff under the circumstances was negligence on his part barring a recovery. The plaintiff testified that it would have been necessary for him to get underneath the car and inspect the brakes in order to have observed their faulty condition, and that he did not inspect them but relied upon the assurance of West that the car was in a good and safe condition. The plaintiff had not equal means with the defendants of knowing of the defective condition of the brakes. The car had been in the possession of the defendants, and it was their duty to deliver it to the plaintiff in a good condition for the use to which it was to be applied by the plaintiff. The primary duty of inspection of the car was not on the plaintiff, under the facts of the case, but rested on the defendants. The plaintiff's immediate superior directed the plaintiff to take the car and use it in the performance of his work, assuring the plaintiff that it was in a safe and good condition.
The defendant relies on the decisions of the Supreme Court inCentral Railroad Banking Co. v. Kenney,
In the present case it appears from the evidence that the plaintiff was directed by the track supervisor of the defendant to take the car and use it, was assured by the supervisor that the car was in a good and safe condition for use, and that at the time he did not know of the defective condition of the brakes. This does not *454 appear in either of the cases above referred to. It does not appear that anything occurred from the time the plaintiff was directed to take the car, and did take the car, and the time of the accident which resulted in his injury, that disclosed to the plaintiff the defective condition of the brakes, or that should have put the plaintiff on notice that the brakes were defective. As we have seen, under the facts of the case at bar there was no duty upon the plaintiff to make a close examination of the car at the time it was delivered to him, but the primary duty of inspection rested on the defendants. Under the evidence the jury were authorized to find that the defective condition of the brakes on this car was not obvious, and could not have been observed by the plaintiff when the car was delivered to him unless he stooped and looked at the part of the brakes underneath the car. It does not appear as a matter of law from the facts in this case that the plaintiff employee could have discovered the defective condition of the brakes in time to avoid exposing himself to the danger occasioned thereby, or that such defective condition was of such a nature as to be discoverable by him in the reasonable and ordinary exercise of diligence in the course of his duty. While it is true the plaintiff stated on cross-examination that he could see that the brake shoes, which fastened to the wheels on application of the brakes, were not in good condition, but were worn, it does not appear that this statement was made before the plaintiff took the car and proceeded towards Harlem with it. It is to be inferred that the plaintiff was referring to the time immediately after the collision. More than once in his testimony the plaintiff positively stated that the defective condition of the brakes was observable only by stooping and looking underneath the car, and could not be casually observed as one approached the car on the morning when he was directed by his immediate superior to use it. The plaintiff positively testified that he did not examine the brakes, and did not know they were defective, but relied on the assurance of the track supervisor that the car was in a good and safe condition to be used. The jury were authorized to find, as they did, that the defective condition of the brakes was not patent and obvious.
The case at bar is not like Kenney v. Central Railroad,
supra. There the plaintiff, a section-master, while riding in a hand-car with another employee of the railroad who was operating the car, *455
was injured by the manner in which the car was being operated by another employee working under the plaintiff. It appeared that had the plaintiff in that case been seated on the hand-car behind the crank with which the car was propelled, instead of in front of it, it would have been impossible for him to have been knocked off and run over; that the car was at the time being operated backwards; that the plaintiff was seated thereon in this manner so that the car could be operated backwards instead of forwards; and that the plaintiff, who was in charge of the car, had been running it backwards, with himself seated in front of the crank, for about two months, and that he did not consider "it unsafe." The plaintiff was injured by reason of the fact that the operator of the car had his coat on while propelling the car with the crank, and this coat became caught in the crank, throwing this employee against the plaintiff and knocking the plaintiff off the car and causing him to be run over by the car. The case at bar is not one where the employee knowingly undertook to use a dangerously defective tool or appliance furnished him by the master, under the immediate command of a superior employee, as in the case of Bell v. W. A. R.,
The evidence does not show that the cause of the injuries to the plaintiff were brought about by the condition of the metal of the brake lever, that the metal, as alleged by the plaintiff, was "springy," and this catapulted the plaintiff forward and out of the car upon colliding with the automobile truck, resulting in the plaintiff's being injured, and that this was not due to any fault of the defendants, but because the plaintiff continued to hold on to the lever while it was pulling away from him, and thus the plaintiff "was hurled forward by the spring of this amazingly flexible piece of steel." The jury were authorized to find that the plaintiff necessarily had to grasp this hand brake and pull it toward him in an attempt to apply the brake when he saw the approaching automobile truck, that if the brake had been in good condition the plaintiff could have stopped the car before it struck the truck, that the plaintiff was pulling the lever towards him, and when the car hit *456 the truck the sudden impact "released the brakes" and the "lever acted as a spring and pitched" the plaintiff "ahead of the car" when it thus came back to an upright position.
The jury were authorized to find that the plaintiff did not know of the existence of Pylant's Crossing, and was not informed thereof by his superior when he was directed to operate the car from Camak to Harlem, and that as he approached the crossing his vision was partly obscured by a bank on each side of the railroad and by a high and rank growth of weeds and bushes along the right of way between where he was and the crossing, and that he was thus prevented from observing the crossing and the automobile approaching it until he was within about fifty feet thereof, and therefore did not have time to avoid colliding with the automobile although he did all he could to stop the car with the defective brakes. It was the duty of the defendants to furnish to the plaintiff a safe place to work with reference to the tracks and right of way where the performance of his duties necessitated his use thereof, and the plaintiff had a right to assume and rely on the proper performance of such duty by the defendants. The evidence does not show as a matter of law that the plaintiff knew of the existence of Pylant's Crossing. This case was fairly submitted to the jury, and there are no exceptions to the charge to the jury or failure to charge, or to any ruling on the admission or exclusion of evidence. The defendants complain only that the verdict was contrary to law and the evidence and without evidence to support it. There was ample evidence to sustain the allegations of the petition as to the plaintiff's injuries, that they were caused by the negligence of the defendants, and that the plaintiff was without such negligence as would bar a recovery. The verdict was for a reasonable amount, considering the nature and extent of the plaintiff's injuries, and was not without evidence to support it. The trial judge did not err in overruling the defendants' motion for new trial.
Judgment affirmed. Sutton, J., concurs.
Dissenting Opinion
The employee in this case could have discovered the alleged negligence of his superior by the exercise of ordinary care for his own safety and the safety of others. An employee assumes the risk of his master's negligence which he can discover by the exercise of ordinary care. In this case the employee was not ordered to use the alleged defective appliance. If he had *457 been so ordered my opinion would be different. My opinion is strengthened, I think, by the rules of the company which are in evidence in this case. The pertinent parts are as follows: "Do not assume anything in connection with the operation of your motive equipment on the main line, but know what you are doing and know that you are doing the right thing in all cases. . . Foremen must be vigilant at all times to protect, not only themselves but the men under their supervision, from incurring personal injuries. . . It is up to you to supply the judgment and care necessary to prevent personal injury to any member of your gang. Nearly all personal injuries are the result of carelessness, a human weakness which can be overcome by careful thought and judgment. . . The responsibility for the safety of motor car and men riding upon it rests wholly with the foreman in charge of the car. We have no control over the movement of automobiles at highway crossings, and it is not practical to require trains to protect against motor cars; therefore the entire burden of preventing collisions rests with those who are operating and who are in responsible charge of the motor car."
