Titus v. Bradford etc. R.
20 A. 517
Pennsylvania Court of Common P...
1890
Check Treatment

Opinion,

Me. Justice Mitchell:

We have examined all the testimony carefully, and fail to find any evidence of defendant’s negligence. The negligence declared upon is the placing of a broad-gauge car upon a narrow-gauge truck, and the use of “ an unsafe, and not the best appliance, to wit, the flat centre plate; ” or, as expressed by the learned judge in his charge, in using on the narrow-gauge road the standard ear bodies, and particularly the New York, Pennsylvania & Ohio car body described by the witnesses. But the whole evidence, of plaintiff’s witnesses as well as of defendant’s, shows that the shifting of broad-gauge or standard oar bodies on to narrow-gauge trucks for transportation, is a regular part of the business of narrow-gauge railroads, and the plaintiff’s evidence makes no attempt to show that the why in which it was done here was either dangerous or unusual. Haleman says the majority of the bearings fit, and those that do not, have hard-wood blocks put under them, and the blocks are fastened with telegraph wire, and he was not positive but that some were bolted on. The particular car complained of was blocked and wired. Cazely and Richmond say it was the custom to haul these broad-gauge cars on the narrow-gauge trucks, though most of the broad-gauge were Erie cars, of a somewhat different construction; and Morris says the car in *626question was put on a Hays truck, fitted for carrying standard-gauge cars on a narrow-gauge road, and that this particular kind of “ Nypano ” car was so hauled quite often. These are plaintiff’s own witnesses, and none of them say the practice was dangerous. The nearest approach to such testimony is by Morris, who says be “ had his doubts.”

But, even if the practice had been shown to be dangerous, that would not show it to be negligent. Some employments are essentially hazardous, as said by our Brother Green, in North. C. Ry. Co. v. Husson, 101 Pa. 1, of coupling railway cars; and it by no means follows that an employer is liable “ because a particular accident might have been prevented by some special device or precaution not in common use.” All the cases agree that the master is not bound to use the newest and best appliances. He performs his duty when he furnishes those of ordinary character and reasonable safety, and the former is the test of the latter; for, in regard to the style of implement or nature of the mode of performance of any work, “ reasonably safe ” means safe according to the usages, habits, and ordinary risks of the business. Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger but of negligence; and the unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same, and however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way for which liability shall be imposed. Juries must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall, in effect, dictate the customs or control the business of the community.

In Ship-building Works v. Nuttall, 119 Pa. 149, our Brother Williams said: “ The testimony shows that such an attachment is not in general use.....It is not enough that some persons regard it as a valuable safeguard. The test is, general *627use. Tried by this test, the saw of the defendant was such a one as the company had a right to use, because it is such as is commonly used by mill owners, and it was error to leave to the jury any question of negligence based on the failure to provide a spreader.” See, also, Payne v. Reese, 100 Pa. 306 ; Sykes v. Packer, 99 Pa. 465; Allison Mfg. Co. v. McCormick, 118 Pa. 519 ; and Lehigh Coal Co. v. Hayes, 128 Pa. 294.

As already seen, the testimony of plaintiff’s own witnesses showed the custom of the appellant company to perform this part of its work in, the way complained of. The defendant’s witnesses showed the custom of at least two other narrow-gauge roads to use the same way. There was no countervailing evidence on part of plaintiff, though, as was said in the closely analogous case of North C. Ry. Co. v. Husson, 101 Pa. 1, “ it was certainly a part of the duty of the plaintiff to affirmatively establish that the loading of cars in the manner complained of was an unusual occurrence.” In the absence of such evidence, the defendant’s last point should have been affirmed, and a verdict directed for the defendant.

It is also entirely clear that defendant’s third point should have been affirmed. The deceased had been a brakeman on this train for five or six months, during which this mode of carrying broad-gauge cars had been used; cars similar to the one on which the accident occurred had been frequently carried, and that very car at least once, about ten days before. He not only thus had ample opportunity to know the risks of such trains, but he had his attention specially called to the alleged source of the accident, by having worked, just before becoming a brakeman, on the hoist by which the car bodies were transferred to the trucks. It was a perfectly plain case of acceptance of an employment, with full knowledge of the risks.

Judgment reversed.