Smoot v. Mobile & Montgomery Railway Co.
67 Ala. 13
Ala.
1880
Check Treatment
BRICKELL, C. J.

— 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 aрpellee 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 rathеr 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 *17sustain a demurrer to the evidence, interposed by the party requesting the instruction. — -1 Brick. Dig. 335, §§ 1-4.

The legal propositions the case involves, are not matter of doubt, or uncertainty, but are well definеd 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 relatiоn. 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 presеnce, personal interference, and negligence, was held liable. So, in the case of Noyes v. Smith, 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 whiсh 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 liаble 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 suсh 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 *18the appellee, or any want of skill or care on their part. Another duty of the same kind, which it is supposed the appellant did not observe (and upon that supposition the present action has been prosecuted), is the use of ordinary care or diligence in furnishing safe and fit materials, appliances, and, when that is employed, machinery, for the service in which ' the servant is engaged: This, however, is not an dbsdute duty. The master must not be understood as insuring, or warranting, the safety or fitness of the materials or appliances furnished, .more than he can be regarded as promising, absolutely and unconditionally, that the fellоw-servants are competent and diligent. The duty resting upon him is to exercise due care and diligence, as we have defined it — the care and diligence which a man of ordinary prudence, engaged in a like business, would exercise for his own protection, and the protection of his property. Whеn this is ‍​‌‌​​‌‌​‌‌‌​​​‌​​‌‌‌​​​‌‌‌​‌​‌​‌​‌‌‌‌‌‌​‌​​​​​‌‌‍exercised, the duty to the servant is satisfied ; for there is no obligation resting upon the master, to be more careful for the safety of the servant, than for his own security. — Mobile & Ohio R. R. Co. v. Thomas, 42 Ala. 672, 719. Accidents, from which personal injury may result, proceeding from defects originally existing in such apрliances,, or which result from their use, are, like the negligence of fellow-servants, of the incidental hazards of the service, to which the servant must have contemplated he would be exposed. — Mobile & Ohio R. R. Co. v. Thomas, supra; Searle v. Lindsay, 11 Com. Bench (N. S.), 429; Wonder v. Balt. & Ohio R. R. Co., 32 Md. 411; Greenleaf v. Ill. Cent. R. R. Co., 29 Iowa, 14; Hard v. Vermont & Canada R. R. Co., 32 Vt. 473. When such appliances have been furnished — when diligence has been observed in procuring them, the use of them- is necessarily intrusted to the servants of a railroad company, as is their care and inspection, and the repair of them, and determining when the use must be abandoned, until repairs are made. This duty may be intrusted to those operating the appliances, or confided to othe? servants having no other duty than that of inspection or of repair.- However this may be, the several servants are in the same circle of employment — derive duty and compensation from the same source, and are laboring for a common purpose. They are fellow-servants, and the master cannot be made answerable to the one, for the negligence of the other. The machinist in the shop, whose duty it was to rеpair locomotives, and the supervisor of track, whose duty it was to keep the road bed in proper and safe condition, have each been determined fellow-servants of the fireman on the locomotive, for whose negligence thе master could not be made liable. — Mobile & *19Ohio R. R. Co. v. Thomas, supra; Mobile & Montgomery R. Co. v. Smith, 59 Ala. 245.

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 оf 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 — thе 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 tо 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 оf 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 aрpellant 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 cаse in that view, we repeat, the bur-*20then of proof rests upon the appellee. We look in vain for the slightest evidence that any of its officers or agents, for whose negligence the appellant would be responsible, until after the accident by which the appellee was injured, had knowledge оf the defective condition of the car, or of any fact which ought to have put them on inquiry. Knowledge of the defective condition of the car, a want of prudence in its use, is traceable only to feUow-servants of the appellee, whose carе and diligence he is presumed to have consented to risk; whatever of guards against the use of defective cars were reasonable, so far as the evidence shows, and to which it could justly be expected the appellant would resort, wеre adopted. The station agent at Greenville was in duty bound not to load, or suffer loaded, unfit cars. The car inspector at Pollard Junction was bound not to permit unfit cars to pass his station. The brakemen were under the duty of examining the car-wheels аnd couplings and reporting to the conductor whenever either was found unsafe, or in any respect unfit. Engaged in running a long line of railroad, -while it was the duty of the appellant to exercise ordinary care for the inspection of its cars, and for the prevention of the use of such as were unsafe, or in any respect unfit, a system of inspection which would embarrass its operations cannot be required. It would, it may be; have been a higher degree of care, to have caused an inspeсtion of ears at every station, and thereby greater security against accidents -would have been afforded. That would be a degree of care, a servant has no right to expect or demand.

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 *21pei’formed the duty, he would have known the defective condition of this coupling. Having knowledge of its condition, and exercising the care and prudence which was necessary in using the coupling in its condition, he could have avoidеd injury from it, as did his fellow-servant, Walker. His failure to examine the coupling, or, if he examined, his failure to employ the care and diligence in its use required by its condition, contributed to produce the injury of which he complains. The principle, that a persоn who, by his own negligence, exposes himself to injury, cannot recover damages for the injury, applies to the relation of master and servant; and the servant cannot recover of the master, for injuries to which his own negligence directly contributed. — Cooley on Torts, 563 ; Whart. Neg. § 244; M. & L. E. R. R. Co. v. Barber, 5 Ohio St. 541; V & M. R. R. Co. v. Wilkins, 47 Miss. 404.

Without considering other questions, the judgment ‍​‌‌​​‌‌​‌‌‌​​​‌​​‌‌‌​​​‌‌‌​‌​‌​‌​‌‌‌‌‌‌​‌​​​​​‌‌‍is reversed, and the cause remanded.