67 F. 214 | 5th Cir. | 1895
(after stating the facts). The leading fact in the case is the explosion of the boiler while the locomotive was at rest, standing in the yard of the company, with no extra pressure of steam, waiting to take out a train. How is this explosion to be accounted for? Can it be done on the theory of inevitable accident, which prudence and care could not reasonably have guarded against? Effects like this must have a cause, and the science of physics is in aid of an effort to discover the cause. Boon after the explosion a number of persons, whose testimony is in the record, came upon the yard where the explosion took place, and made examination of the pieces and broken fragments of the boiler, and their testimony tends to show, if it does not fully establish, that the boiler of the locomotive at the time of the explosion, and for a considerable time before that, was and had been in a weak and unsafe state, by reason of the condition of the stay bolts, many of which had been broken before the explosion, some of them for a long time before, as appeared from their rusted and corroded condition. It also appears that there are well known modes of testing the condition of stay bolts in a boiler engine, and the testimony is to the effect that, if any of these tests had been properly applied to the boiler within a reasonable time before the explosion, the true condition of the stay bolts would have been discovered. It is true there is some conflict in the testi
The plaintiff in the court below, appellee here, was, at the time of the injury complained of, an employé of the defendant company, but not in any way in charge of that particular locomotive upon which the boiler exploded. He was standing near this engine at the time in the discharge of his duties to the company, and the question arises as to the measure of duty the defendant company owed him under the circumstances. A locomotive charged with steam to propel trains of cars is a dangerous machine, and the duty imposed upon the defendant company which it owed to its employés is that due care should be used; that it is kept and maintained in a safe and proper condition; and the measure of skill and care required of those who use and control such agencies of power and danger must bear proportion to the consequences liable to follow from, the want of such care and skill.
In Hough v. Railway Co., 100 U. S. 218, the court, after stating the general rule exempting the master from liability to a servant for injuries caused by the negligence of a fellow servant, say:
“But the obligation still remains to provide and maintain in suitable condition the machinery and apparatus to be used by its employés, and the obligation the more important and the degree of diligence the greater in proportion to the danger which may be encountered. Those, at least, in the organization of the corporation • who are invested with controlling or superior authority in that regard represent its legal personality. Their negligence, from which injury results, is the negligence of the corporation. The-latter cannot, in respect of such matters, interpose between it and the servant, who has been injured without fault on his part, the personal responsibility of an agent who, in exercising the master’s authority, has violated the duty he owes, as well to the servant as to the corporation.”
- Other authorities might be cited in which the principles applicable to cases of this character are announced and applied. Railroad Co. v. Herbert, 116 U. S. 647, 6 Sup. Ct. 590; Railroad Co. v. Ross, 112 U. S. 377, 5 Sup. Ct 184; Railroad Co. v. Daniels, 152 U. S. 688, 14 Sup. Ct. 756.
In the case last cited the court says, quoting with approval:
“The law is well settled, both here and in England, our mother country, that the employer should adopt such suitable implements and means to carry on the business as are proper for that purpose. * * * If, by reasonable care and prudence, the master may know of the defect in the machinery which he operates, it is his duty to keep advised of its condition, and not needlessly expose his servants to peril or danger.”
There may seem to be some want of harmony in the decided, cases upon this subject. The language of courts in the opinions delivered is sometimes shaded by the facts in the particular case then under consideration, and thus may sometimes give rise to an apparent difference in the rules applied when none really exists.
The charges Nos. 1, 2, 3, 4, and 5, requested by the defendant,