79 Me. 397 | Me. | 1887
The plaintiff was at work as a locomotive machinist in the car shops of the defendant corporation at Waterville. On the day the injury was received he was directed by the foreman of the car shops to go out with an engineer and
The plaintiff bases a recovery against the defendant corporation upon two grounds — that the implements and means furnished were not proper and suitable for the work which the plaintiff was directed to do,— and that Philbrick, representing the corporation as a vice-principal, placed him in a position of peculiar peril without notifying him of the danger.
The latter position is the one most strenuously urged and relied on by the plaintiff who recovered a verdict against the
With the view which the court has taken of the case, it does not become necessary to determine in what capacity Philbrick was acting, whether as vice-principal or as a fellow-servant with the plaintiff, inasmuch as it is the opinion of the court that the-verdict cannot be upheld upon other grounds.
The action set forth is founded upon the charge of negligence.. It is the gist of the action. To entitle the plaintiff to recover,, he must prove such negligence, the omission of some duty, oribe commission of such negligent acts on the part of the defendant, as occasioned the injury to the plaintiff.
If the injury was occasioned through his own neglect and want of ordinary care, or was the result of accident solely, the defendant being without fault, the action is not maintainable. "The negligence is the gist of the action, but the absence of negligence contributing to the injury, on the part of the plaintiff, is equally important.” Brown v. E. & N. A. Railway Co. 58 Maine, 387; Osborne v. Knox & Lin. Railroad, 68 Maine, 51.
There is no presumption of negligence on the part of the defendant from the fact alone that an accident has happened, or that the plaintiff has received an injury while in the employment of the defendant. In the long line of decisions both in this country and in England from Priestley v. Fowler, 3 Mees. & Weis. 1, to the present time, it has been held that the mere fact, of the relationship of master to servant, without a neglect of duty, does not impose upon the master, a guarantee of the servant’s safety but that the servant of sufficient age and intelligence to understand the nature of the risks to which he is exposed, engaging for compensation in the employment of the-master, takes upon himself the natural, ordinary and apparent, risks and perils incident to such employment. Coolbroth v. Maine Central R. R. Co. 77 Maine, 167; Nason v. West, 78 Maine, 257.
The relationship of master and servaut may and most frequently does exist by simple mutual agreement that the servant is to labor in the service of the master. In such case the
Nor is the employer bound to furnish the safest machinery, ’instrumentalities or appliances with which to cany on his business, .nor to provide the best methods for their operation, in order to -save himself from responsibility resulting from their use. If they are of an ordinary character and such as can with reasonable care be used without danger, except such as may be reasonably incident to the business, it is all that the law requires. Railroad Co. v. Sentmeyer, 92 Penn. St. 276.
Thus it has been held that where an injury happens to a servant while using an instrument, an engine or a machine in the course of his employment, the nature of which he is as much aware as his master, and in the use of which he receives an injury, he cannot, at all events if the evidence is consistent with his own negligence in the use of it as the cause of the injury, recover against his master, there being no evidence that the injury arose through the personal negligence of the master; and that it was no evidence of such personal negligence of the master, that he had in use in his business an engine or machine less safe than some other in general use. Dynen v. Leach, 26 L. J. (N. S.) Exch. 221.
And in accordance with the same principle it was held in Indianapolis B. & W. Railway v. Flanigan, 77 Ill. 365, that a railroad company was not liable for an injury received by an
So in Fort Wayne, &c. Railroad v. Gildersleeve, 33 Mich. 133, it was decided that a railroad company which used in one of its trains an old mail car which was lower than others, was not liable to its servant, who knowingly incurred the risk, for an injury resulting from the coupling of such old car with another, though the danger was greater than with cars of equal height.
Every employer has the right to judge for himself in what manner he will carry on his business, as between himself and those whom he employs, and the servant having knowledge of the circumstances, must judge for himself whether he will enter his service, or, having entered, whether he will remain. Hayden v. Smithville, 29 Conn. 548; Buzzell v. Laconia M’f’g Co. 48 Maine, 121; Shanny v. Androscoggin Mills, 66 Maine, 427; Coombs v. New Bedford Cordage Co. 102 Mass. 585; Ladd v. New Bedford R. R. Co. 119 Mass. 413.
Moreover, the law implies that where there are special risks in an employment of which the servant is not cognizant, or which ' are not patent in the work, it is the duty of the master to notify him of such risks; and on failure of such notice, if the servant, being in the exercise of due care himself, receives injury by exposure to such risks, he is entitled to recover from the master whenever the master knew or ought to have known of such risks. It is unquestionably the duty of the master to communicate a danger of which he has knowledge and the servant has not. But there are corresponding duties on the part of the servant; and it is held that the master is not liable to a servant who is capable of contracting for himself, and knows the danger attending the business in the manner in which it is conducted, for an injury resulting therefrom. Lovejoy v. Boston & Lowell Railroad, 125 Mass. 82; Ladd v. New Bedford R. R. Co. supra; Priestley v. Fowler, supra. It is his duty to use ordinary care-to avoid injuries to himself. He is under as great obligation to. provide for his own safety, from such dangers as are known to.
These rules are elementary and fundamental, and are everywhere recognized. They grow out of the necessities of the relation of master and servant, and are founded and sustained by public policy. Though dressed in language differing somewhat in style of expression, it will be found that the decisions generally are in accord with the principles herein expressed. One writer has thus summed up the doctrine in the following language : "As we have seen it to be the duty of the master to point out such dangers as are not patent, so it is the duty of the employee to go about his work with his eyes open. He cannot wait to be told, but must act affirmatively. He must take ordinary care to learn the dangers which are likely to beset him in the service. He must not go blindly to his work when there is danger. He must inform himself. This is the law everywhere.” Beach, Contrib. Neg. § 138. Russel v. Tillotson, 140 Mass. 201.
In speaking of the respective duties and obligations between master and servant in reference to dangers which are concealed and those which are obvious, the court, in Cummings v. Collins, 61 Mo. 523, say : "The defendants are not liable for any injury resulting from causes open to the observation of the plaintiff, and which it required no special skill or training to foresee were likely to occasion him harm, although he was at the time engaged in the performance of a service which he had not contracted to render.”
Upon a careful examination of the evidence in the case under consideration, we are satisfied that the verdict cannot stand. There is not sufficient evidence upon which a jury could properly found a verdict that the plaintiff himself was in the exercise of due care at the time he received his injury. This is an affirmative proposition which, in this state and many of the others, it is incumbent on the plaintiff to make out by proof before he could be entitled to recover. Dickey v. Maine Telegraph Co. 43 Maine,
It is not denied, as contended for by the learned counsel for the plaintiff, that the question of due care is ordinarily one of fact for the jury. But the question oftentimes becomes one of law whether there are such facts or circumstances upon which the jury can properly base their determination in favor of such care. If not, it is within the province of the court, in the due administration of justice according to well settled legal principles, to revise their findings.
And in this case the evidence uneontradicted from the plaintiff himself as to the manner of the accident is conclusive against the verdict upon this point. Not only do the facts as detailed by him, and about which there appears to be no controversy, fail to show the exercise of due care, but rather that degree of carelessness and neglect on his part which must be held to have very largely if not wholly contributed to the injury complained of. He was a man forty-five years of age, and had been for many years familiar with engines of all constructions; had been a locomotive machinist for twelve years, repairing them constantly, and six years in the employ of the defendant corporation. For five years prior to the accident engines with buffers had been in common use upon the road, and he had worked on every pattern of engine that came into the shops where he was employed. He testifies that the engine with which he was injured came that morning from the repair shop where he was working, and that it might have been there four or five weeks, and he might have worked on it. He had received a general warning from Philbrick
And it was held, in Wheeler v. Wason M’f’g Co. 135 Mass. 298, that where the servant is as well acquainted as the master with the dangerous nature of the machinery or instrument used, or of the service in which he is engaged, he cannot recover. Beach, Cont. Neg. § 140.
Very similar were the facts in the case of Hathaway v. Railroad, 51 Mich. 253 (47 Am. Rep. 569), to these in the case before us. There, the plaintiff, an inexperienced brakeman, was called upon by the conductor in the night time to couple two cars of the Erie road which were made specially dangerous by having double deadwoods which the plaintiff had never seen before. In that case, as in the present, one of the real grounds set up by the plaintiff, was that he had not been sufficiently instructed in what was required of him by the company to enable him to discover and appreciate the danger, and that some notice thereof should have been given him by the company other than the general one which he received. The court say: "The plaintiff had the full opportunity of examining the one by which he stood some moments before the cars came together; its size, shape and the location of the drawbar were before him. He had only to look at it to be informed of any perils surrounding it. The moving car at a distance of twenty feet with its deadwood and drawbar in plain view slowly approached the one where the plaintiff was standing. It does not appear that there was any hurry about the business. How could the plaintiff have been better warned? He could see the deadwoods and drawbar thereon as well as if he had made the coupling of them a thousand
If the plaintiff, as is contended, was at the time of this unfortunate occurrence, in the performance of duties outside of his regular employment, he will nevertheless be held to have assumed the risks incident to those duties. This principle is settled by numerous decisions. Woodley v. Metropolitan District Railway Co. 2 Exch. Div. 389; Railroad v. Fort, 17 Wall. 553; Rummill v. Dillworth, 111 Penn. St. 343; Buzzell v. Laconia M'f'g Co. 48 Maiue, 121; Hayden v. Smithville, 29 Conn. 548; Wright v. W. Y. Central Railroad 25 N. Y. 570; Leary v. Boston & Albany Railroad, 139 Mass. 587.
In the last case cited where the question is fully discussed, the court say: "Where one has assumed an employment, if an additional or more dangerous duty is added to his original labor, he may accept or refuse it. If he has an existing contract for the original service, he may refuse the additional and more dangerous service; and, if for that reason he is discharged, he may avail himself of his remedy on his contract. If he has no such contract, and knowingly, although unwillingly, accepts the additional and more dangerous employment, he accepts its incidental risks; and, while he may require the employer to perform his duty, he cannot recover for an injury which occurs only from his own inexperience.”
From the disposition of the case already made, it becomes unnecessary to consider the defendant’s exceptions. The law pertaining to the case in order to cover it fully at the time of the trial was necessarily somewhat complicated; and it is very questionable whether the numerous abstract propositions appearing in the charge, and following each other in quick succession, could be readily comprehended by a jury unaccustomed to grapple with abstruse and intricate legal propositions. While the charge may have been correct in the abstract, we are of the opinion that several of the defendant’s requested instructions were proper to a full understanding of the principles involved, and their application to the questions at issue, and should have been given.
Motion sustained. New trial granted.