32 Md. 411 | Md. | 1870
delivered the opinion of the Court.
This is an action by an employó against his employer, to recover for an injury received while engaged in the work for which he was. employed, by reason of defective machinery that he was required to operate.
The plaintiff was a brakeman in the employ of the defendant, on one of its burden trains, and, while engaged in his ■work, he received the injury complained of, which was occasioned by an alleged defect in the brake to one of the cars that he was using in the regular course of his duty. The supposed defect consisted in the use of a hook instead of an eye-bolt on the brake, and in having the point of the hook turned the wrong way. In attempting to use the brake, in consequence of the defect, the plaintiff was suddenly thrown from the car to the track, and was caught between the brake-shaft and the trucks of the car and dragged a considerable distance, and seriously injured. He alleges that there was negligence on the part of the defendant in regard to the use of this defective brake, and that he is entitled to recover from the company the damages sustained by him as the consequence of such negligence.
It is now settled that there is no contract obligation im- \ posed upon the master, from the mere relation that he bears \to the servant, to provide machinery of any particular character or ¡description, to be operated by the latter, nor is there any implied undertaking on the part of the former,'resulting from the mere relation as employer, that the machinery shall be kept free from defects, such as may expose the servant to danger. The servant is a free agent to select the employment into which he enters, and in contracting for the wages that he is to receive, must be supposed to take into account the risks to which the employment may expose him; and among those risks are the defects and accidents of the machinery, and the negligence and want'of caution of fellow servants in the com
From these general principles it follows that the master is not liable to his servant for any injury occasioned by a defect of machinery furnished to the latter to operate, unless he was negligent in providing such machinery, or, if he knew of the delect, in omitting to warn the servant of its existence. And, where the defect producing the injury complained of, was the consequence of the incompetency or neglect of a fellow-servant, or where the origin of the defect did not appear, it has been held that the master was not liable to his servant, it not appearing that he had been guilty of negligence, either in selecting the fellow-servant or in providing the machinery in which the defect occurred. Tarrant vs. Webb, 18 C. B., 797; Ormond vs. Holland, El. B. & El., 102; Wigmore vs. Jay, 5 Exch., 354; Brown vs. Accrington Cotton Company, 3 Hurl. & C., 511.
"Who is a fellow-servant, within the meaning of the rule, has been a question of some diversity of decision, though the decided weight of authority is to the effect that all who serve
The case of Searle vs. Lindsay, before referred to, well illustrates this. There the plaintiff was employed by the defendants as their third engineer on board their steam vessel. While turning a winch, one of the handles came off, in consequence of the want of a nut or pin to secure it, and the plaintiff was thereby seriously injured. He was, with others at work at ' the winch by the orders of the chief engineer, who knew that the instrument was out of order, but was, nevertheless, a com
In the case before us, the question, depending upon a diversity of opinion, as to whether the eye-bolt or the hook is the better mode of fastening the brake, is immaterial, as both seem to be approved appliances, tested by trial and experience; and if it were conceded that the eye-bolt has' superior merits, it by no means follows that the defendant was bound to discard the hook that had been used for a- long time, and on so many of its cars, without accident. A master is not bound to change his machinery, in order- to apply every new invention or supposed improvement in- appliances,
As to the defective attachment of the hook, it was shewn to have been the duty of the eipployés, Fairbanks, Buckingham and Day, to see that the cars and their appliances were kept in proper and safe repair. Whatever negligence, therefore, may have existed in regard to the arrangement of the brake, and of the defective attachment of the hook thereto, was the negligence of .those employés, the fellow-servants of the plaintiff; and there is an entire absence of evidence to show that there was the least negligence on the part of the defendant in the selection and employment of those servants; but, on the contrary, there is the most abundant evidence that such servants were of sufficient competency and skill; nor is there the slightest evidence in the case, that any superintendent or other agent, having control, and general direction of the employés, and for whose negligent conduct the defendant would be responsible to the plaintiff, ever had knowledge of the defective condition of the brake before the occurrence of the injury. The proof wholly failing in these important particulars, the Court below could not have done otherwise than instruct against the plaintiff. The essential proof of the gravaman of the action was wanting, and of course the plaintiff could not recover. The several prayers of the defendant were unobjectionable, and the Court was therefore right in granting them. And as by the granting of the defendants’ prayers the case was taken from the jury, the plaintiff’s prayer, which was rejected, became unimportant.
For these reasons the judgment will be affirmed.
Judgment affirmed.