61 A. 418 | Md. | 1905
The facts of this case are as follows. The appellee was a flagman in the employ of the appellant at the crossing of a street over its railroad in the city of Chester, in the State of Pennsylvania. His duty was to watch for passing trains and give notice thereof to persons passing along the highway. For the better performance of his duty the appellant provided him with a watch-box where he could find shelter when not obliged to be upon the track. He had been so employed for more than seven years. Three tracks, two of them main, and one a siding, there crossed the street. The box was placed between the two main tracks; it was about eight feet high, four feet across, and weighed three or four hundred pounds. It had been in use several months. On the morning of the accident *343 it had been moved temporarily by the employees of the appellant, from its foundation for the purpose of being repaired. The appellee whose term of service was at night, was absent while the repairs were being made. He returned to his work before the repairs was fully completed, but after the box had been moved back to the place where it belonged. There was testimony tending to show that it was replaced apparently in its original position with relation to the location of the track; and no change was observable other than that the step had been removed and some alteration had been made in its structure. He testified that on his return he noticed no change in the location of the box; it was "apparently in the same position;" far enough away not to be hit; as far as he could see, it was "in a safe place," he "didn't think of injury." It was also in testimony, that the appellee when he arrived at his place was about to enter the box to leave his kettle and other things needed by him during the night, when the box was struck by a passing engine and the injury of which he complains was inflicted. At the close of the trial the appellant excepted to the action of the Court upon the instructions asked for by the respective parties.
The substantial question in the case is whether this watch-box under the circumstances of this case falls within the familiar rule that requires the master to exercise all reasonable care to provide and maintain proper and safe machinery, appliances and places for his employees, and that such duty he cannot avoid by showing that he has used reasonable diligence in the selection of his agents to perform the work. In such a case the negligence of the servant to discharge this duty would be a negligence imputable to the master for which he would be responsible, and this is so because there rests on the master a positive duty which he cannot delegate. These principles are too well settled to require further statement, or citation of authority. They are sustained in the following cases. Russell's case,
In this view of the matter it might be correctly said that *345
the appellee was as much engaged in the business of the company while using the box in the manner the company intended it should be used as he could be while outside upon the street waving his flag. It was the duty of the company to take reasonable and proper precautions to make it safe, and it was a duty it was bound to perform. It cannot then be maintained that if the box was originally not unsafe when it became out of repair the company would have discharged its full duty it if did no more than entrust to a competent servant the job of restoring it even though it used due care in the selection of such employee. There is no contention here that the repairs to the structure was the cause of the accident, but that in replacing it, it was located to near the track, so that it was struck by a passing engine, whereby the appellee was thrown over and injured. The proof shows that the box when replaced, was located too close to the track and was thereby brought within reach of the passing engine. It was the clear duty of the company to construct, and maintain this structure in a safe condition, so that it could be safely used. The duty of maintaining, as well as of constructing suitable and sound appliances rests upon the master, himself, and he cannot subject his employees to risks beyond those which are incident to the employment contemplated at the time of the contract of service, and the employee may presume that this duty has been discharged. Stricker case,
The plaintiff's prayers are in accordance with this principle and were properly granted. The objection to the first prayer, that it does not properly submit to the jury to find the appellant's negligence, is not well taken. It requires it to find that the position of the watch-box was unsafe and dangerous, and in consequence thereof, the plaintiff was injured, c. The appellee in accepting the employment of flagman took upon himself only the risks incident to the service known to him or discernible by ordinary care on his part. He assumed the risks that were incident to the use of a box properly located, and such others as he knew or ought to have *346
known by the exercise of reasonable care but he did not assume the risk of a watch-box placed without his knowledge, so close to the track as to be liable to be struck by passing trains. A watch-box so placed is a dangerous structure. As it stood at the time the appellee was injured it was a constant menace to those whose duties required them to use it. As was said by the United States Supreme Court in Railroad v. McDade,
After a careful examination of the whole record we are of the opinion the case was properly submitted to the jury.
Judgment affirmed.
(Decided June 20th, 1905.)