| Ala. | Dec 15, 1880
— The instruction to the jury, given at the request of the appellee, to which an exception was reserved, is loosely worded, and confused. Interpreting it as we suppose it was intended the jury should interpret it, we understand it as affirming that, though the injuries of which the appellee complains were the result of the negligence of his fellow-servants, yet the appellant is liable in damages for such injuries, if it did not exercise due care and diligence to know the condition of the car, from the defects, or rather the impaired condition of which the injuries proceeded. We do not propose to consider this instruction particularly, because we reach the conclusion, that the City Court erred in refusing, on the request of the appellant, to instruct the jury that, under the evidence, the appellee was not entitled to recover. Such an instruction cannot be supported, when the evidence is conflicting, or when the evidence is circumstantial, or when a material fact rests wholly in inference. It may be given, and should on request be given, whenever the court would
The legal propositions the case involves, are not matter of doubt, or uncertainty, but are well defined and well settled by a long line of decisions, and have been often in this court the subject of consideration. A master is under the same liability to his servant, for injuries proceeding from his negligence, that he is to third persons to whom he sustains no special relation. So, a liability rests upon him, whenever his personal fault contributes directly to cause the injury, though concurring with it, there may have been the negligence of a servant engaged in the same common employment. In Roberts v. Smith, 2 Hurls. & Nor. 212, a scaffolding was erected under the immediate supervision of the master, who would not permit the use of some safe and strong scantlings, directing the use of others, weak and not safe, in consequence of which the scaffolding fell, and a servant was injured; the master, because of his presence, personal interference, and negligence, was held liable. So, in the case of Noyes v. Smith, 28 Vt. 59" court="Vt." date_filed="1855-11-15" href="https://app.midpage.ai/document/noyes-v-smith-6575748?utm_source=webapp" opinion_id="6575748">28 Vt. 59, the personal fault of the master was in the careless selection of a locomotive, which was rmsafe and dangerous, from the explosion of which the engineer, to whom its unfitness was unknown, was injured ; the want of proper care and diligence rendered the master liable to the engineer. It is, however, the negligence of the master, for which liability to a servant can be visited upon him, for the rule is settled, that he cannot be made liable for injuries proceeding from other servants in the same employment. Injuries, resulting from such cause, are of the risks incident to the employment, which it is intended the servant contemplates, and consents to incur, when he enters the service. There is also, a higher reason for relieving the master from liability for such injuries, founded in the policy of encouraging and compelling the servant to exercise diligence and caution in the discharge of his duties, which, while protecting him, affords protection also to the master ; such diligence being properly esteemed a better security against injury from the negligence of a fellow-servant, than recourse against the master for damages, when the injury has been received. — Cooley on Torts, 541.
It is, however, a duty resting upon the master, to use ordinary care — the care which men of common or ordinary prudence exercise under like circumstances for their own protection — in the employment of careful and skillful servants, and not to continue in his service such as are known to be wanting in either reasonable skill or diligence. This duty is not now involved, for it is not insisted that there was any want of prudence in the employment of any of the fellow-servants of
If, therefore, tbe coupling or bumper of the car, causing the injuries of which the appellee complains, or the use of the ear in its defective condition, was the result of the neglect or want of care of a fellow-servant — of the station agent at Greenville — the conductor of the train, the fellow-brakeman or the car inspector at Pollard Junction, each and all of whom being engaged in the same common service, and the same general business, the appellant cannot be made liable, unless negligence can be imputed to it, concurring with their negligence. The burthen of proving such negligence rests upon the appellee. It is the indispensable element of his right of recovery — the very gravamen of his complaint. Inferences of it cannot be drawn from tbe fact of injury, and from the unfit and unsafe condition of the car. This is the established doctrine, distinguishing the case of a servant, claiming damages for injuries resulting from negligence, and passengers, who can recover upon a presumption of negligence, whenever injuries are received because of unfit instrumentalities employed in their transportation. — Mobile & Ohio R. R. Co. v. Thomas, supra.
In this case, there is a want of evidence that the car was originally unsafe. The unfitness and danger imputed to it, was the result of breaking of parts of it, in the use. When it became broken, and, in consequence, unsafe and unfit for use, or how long it had been in that condition, is not shown. But that it was accidentally in this condition, on the road, between its terminating points, in use for transporting freight at a time and place, when and where, the appellant could not be reasonably expected to have knowledge of its condition, is apparent. True, the witness Walker speaks of it as not safe, and the caution he observed in the use of cars having a coupling of the like kind. But, it is apparent he was speaking of it, only as compared with other cars, having a coupling of different construction, and as less safe than such cars ; not as unfit or unsafe for use absolutely. The master is not bound to supply the servant with the most approved and the safest appliances. Such as are safe and fit, not exposing the servant to greater perils than are usually incident to the service, is the measure of duty. — Whart. Neg. § 213; Mobile & Ohio R. R. Co. v. Thomas, supra.
The negligence of the appellant is supposed to consist in a want of ordinary care to know the condition of the car. Knowledge of its condition is not imputed, but ignorance is alleged to have been culpable, because the result of negligence. Turning to the case in that view, we repeat, the bur-
When the master provides machinery in itself safe, or exercises ordinary care in providing it, and exercises the same-care to keep it in that condition, if he were held to answer for the negligence of the servants whose duty it is to use it, to inspect it, and to use it only when safe, and to give him notice when it becomes unsafe, the rule relieving him from liability for servants upon -whose fidelity he is compelled to-rely, would be practically abrogated.
The essential fault — the negligence of the appellant, for which alone there is liability to the appellee — was not shown} nor was there evidence tending to show it. The injuries received by him were accidental, the incidents of the service in which he engaged voluntarily ; or, if mixed with negligence on the part of others, it was the negligence of his fellow-servants. The City Court erred in refusing to charge that the evidence did not authorize him to recover.
But, independent of this view, the evidence is undisputed, that it was part of the duty of the appellee to look after the coupling of the car; and that, if with proper care he had
Without considering other questions, the judgment is reversed, and the cause remanded.