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The law of the master's liability for In

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THE LAW

MASTER'S LIABILITY

INJURIES TO SERVANT

PV^..^.>^

By W. F.TBAILEY

One of the Judges of the Circuit Court of Wisconsin

St. Paul, Minn.

WEST PUBLISHIiNG CO.

1894

Copyright, 1894,

BY

W. F. BAILEY

PREFACE.

Tliere is no branch of the law so fraught with perplexi- ties to the practitioner as that which has been made the subject of this treatise. The difficulties are twofold: One, to ascertain what the law is; the other, where to find it. The law is largely what may not be inaptly termed "judge-made law." it had its origin''in the expressions of a learned judge. Those expressions were adopted as rules. They have been made the subject of discussion and construction by courts everywhere. Courts of the several jurisdictions have arbitrarily adopted construc- tions peculiarly their own, resulting in widest, and it might be said most unpardonable, differences and dis- tinctions. Such want of uniformity has produced con- fusion, uncertainty, and probably injustice. The state- ment of the general rule, in most respects, is but a mean- ingless expression; certainly, an incomplete one. It con- veys but little, if any, knowledge of the law in particular courts or states. The practitioner is forced to examine and review the decisions of a particular jurisdiction, if he would learn the la\v' of that jurisdiction, and, if able to find it, he too often finds it is valueless for use in another. To add to his confusion, he will find the same courts, in their efforts to apply the general rule, have not always been consistent. Largely, this is a result of the influence of decisions of other courts; to some extent the result of

MAST. AND SEUV. (JUj

PREFACE.

sentiment; and also, in some measure, the result of a lack of a thorough understanding of the exact principles upon which other decisions were predicated.

To review the many decisions of a state upon the sub- ject, and extract therefrom rules or principles, is a work requiring much time and considerable mental effort. First of all, the decisions which are apparently conflicting (and there are many such) must, if possible, be reconciled. Un- less familiar with the general subject, there is much that will escape his attention. The courts have often indulged in such nice refinements that a distinction is not always plain or readily noticed. To properly prepare and present his case, of ttimes he is forced to apply precedents from other courts. His difficulties are thus increased. Whether ap- plicable or not depends upon the construction of the gen- eral rule they have adopted. He must extract the rule.

These difficulties were presented to the writer, at the bar as well as upon the bench, and were suggestive of the preparation of this work. He had to extract from a large number of decisions the rule of the Wisconsin court, a matter of no little difficulty. When precedents were sought to be applied (as they often were) from New York, Massachusetts, Ohio, and other states, their value depended upon the construction placed upon the rule by their courts, whether the same as by the Wisconsin court in analo- gous cases; and this had to be determined, most fre- quently, by the logic used by the courts, rather than the result declared. The rule applied in Ohio, or the construc- tion of the general rule there, had no application. In Massachusetts it would apply as to some particular subjects, but not as to others. Even the rule in New York could not always be relied upon. In some particulars the reason- ing of its court is not in harmony with the logic of the Wis- consin court.

PREFACE. V

The writer has attempted in this work to save courts and practitioners much of the labor that otherwise they would encounter, and relieve them, to some degree, from the difiiculties of which he has spoken. He has reviewed the decisions of the different states, and sought to deduce therefrom the principles which they applied. The rea- soning of the courts had to be consulted, and in many in- stances is placed before the reader; apparent inconsist- encies have been noticed, and distinctions made plain; comparisons have been made, and results stated. The subject has been classified under appropriate heads. The implied duties and obligations growing out of the con- tract of service have been taken as the central and predom- inating feature. Prominence has been given to those de- cisions which declare that the relation between master and servant rests in contract, as stating rules more cer- tain in their application, and most just in their results. The doctrine of fellow servant has been classified by states, as the only method by which an intelligent and concise statement of this branch of the law can be presented. In the text the reasoning of the courts is given ; in some cases at considerable length. In the index conclusions are con- cisely stated, making it a most valuable part of the work. The exact rule declared by the court of any state can be ascertained in a moment. In fact, the index is to a great extent an analysis of the subjects treated throughout the work. The work is designed to be practical, rather than theoretical; to present concisely the conclusions of the courts, and in such a manner that they can readily be found, and, when found, understood. Yet the writer has indulged in criticism. This was made necessary by in- considerate expressions used by judges, as well as de- partures made by courts in some cases from doctrines otherwise well defined and declared. The purpose was

VI PEEFACE.

not simply to criticise, but to call to the attention of the reader, and impress upon his mind, the fact that the language of the cases, at least, was exceptional. It is not to he understood that the efforts of courts have pro- duced certainty of rule in their respective jurisdictions, applicable to all conditions and circumstances. In fact, it may be said the rules declared by them are quite flexi- ble; that there remains much of doubt and uncertainty. It is cause for regret that more certainty and greater uni- formity have not been obtained. This want of uniformity ought to be suggestive of a uniform code of laws upon the subject.

Eau Claire, Wis., May 21, 1894. W. F. BAILEY.

TABLE OF CONTENTS.

CHAPTER I.

Papres

Implied Duties of the Master 1-12

CHAPTER II.

Master's Duty— Character of Appliances 13-33

CHAPTER III.

Master's Duty (Continued)— Character of Premises 34- 45

CHAPTER IV.

Master's Duty (Continued)— Employment of Servants 46- 70

CHAPTER V.

Master's Duty (Continued)— To Promulgate Rules 71- 92

CHAPTER VI.

Master's Duty (Continued)— Inspection 93-108

CHAPTER VII.

Master's Duty (Continued)— To Inform Servant of Defects and Risks 109-127

CHAPTER VIII.

Master's Duty (Continued)— Delegation of 128-141

CHAPTER IX.

Assumed Risks— Master's Duties and Methods 142-181

MAST. AND SERV. (vii)

Viii TABLE OF COiNTENTS.

CHAPTER X.

Pagea Assumed Risks (Continued)— Knowledge of Defect— Appre- ciation of Danger 182-205

CHAPTER XI.

Promise to Repair 206-225

CHAPTER XII.

P^ellow Servants 226-246

CHAPTER XIII.

Fellow Servants (Continued) 247-265

CHAPTER XIV.

Fellow Servants (Continued) 266-290

CHAPTER XV.

Fellow Servants (Continued) 291-310

CHAPTER XVI.

FeUow Servants (Continued) 311-332

CHAPTER XVII.

FeUow Servants (Continued) 333-363

CHAPTER XVIII.

Fellow Servants (Continued) 36^393

CHAPTER XIX.

Contributory Negligence 394^411

CHAPTER XX.

Contributory Negligence (Continued) 412-432

TABLE OF CONTEKTS. IX

CHAPTER XXI.

Pages

Contributory Negligence (Continued) 433-465

CHAPTEK XXII.

Independent Contractors 466-474

CHAPTER XXIII.

Contracts Limiting Liability 475-481

CHAPTER XXIV.

Contracts Releasing Claims 482-487

CHAPTER XXV.

Law Governing Rights and Remedy 488-489

CHAPTER XXVI.

Character and Sufficiency of Proof 490-513

CHAPTER XXVII.

Character and Sufficiency of Proof. (Continued) 514-536

APPENDIX.

Master's Duty— Premises 537-540

Same— Appliances 541-543

f

THE LAW

OF THE

MASTER'S LIABILITY

FOB

INJURIES TO SERVANT.

CHAPTER I.

IMPLIED DUTIES OP THE MASTER.

The implied duties are

To furnish reasonably safe appliances for use

of servant, p. 2. To provide reasonably safe place for the doing

of the -work, p. 3. To eniploy competent and skillful servants,

and a sufficient number of them, p. 3.

The measure of his duty in these respects is ordi- nary care, p. 3. Test of ordinary care in several states discussed, pp.

4-8. Statement of the federal court criticised, pp. 9-11.

The relationship of master and servant may, and most frequently does, exist by simple mutual agreement that the servant is to labor for the master. In such case the law

MAST. AND SBRT. 1

2 IMPLIED DUTIES OF THE MASTER. [Ch. 1

holds that the terms of the contract are not fully expressed, and that there exist by implication reciprocal rights and ob- ligations on the part of each, which it wUl protect and enforce as fully as if expressed by the parties.

A master is liable in damages, ordinarily, to his servant who is injured through the master's failure of duty to- wards him; negligence being nothing more nor less than a failure of duty. Among the implied obligations resting upon the master are (1) that he shall provide suitable means and appliances to enable the servant to do his work as safely as the hazards incident to the employment will permit j^ (2)

Stephenson v. Duncan, 73 Wis. 406, 41 N. W. 337; Naylor v. Railway Co., 53 Wis. 661, 11 N. W. 24; Lake Shore, etc., R. Co. v. McCormick, 74 Ind. 440; Wormell v. Railway Co., 79 Me. 404; Brabbitts v. Railway Co., 38 Wis. 289; Smith v. Railway Co., 42 Wis. 520; Dorset v. Construction Co., Id. 583; Wedgewood v. Rail- way Co., 44 Wis. 44; Stetler v. Railway Co., 46 Wis. 497, 1 N. W. 112; Stetler v. Railway Co., 49 Wis. 609, 6 N. W. 803; Bessex v. Railway Co., 45 Wis. 477; Hulehan v. Railway Co., 58 Wis. 319, 17 N. W. 17; Ford v. Fitchburg Ry. Co., 110 Mass. 240; Holden v. Fitchburg R. R., 129 Mass. 268; Hough v. Railway Co., 100 U. S. 213; Davis v. Railway Co., 55 Vt. 84; Baker v. Railroad Co., 95 Pa. St. 211; Kansas Pacific Ry. Co. v. Little, 19 ICan. 267; Kain v. Smith, 89 N. Y. 370; Bridges v. Railway Co., 6 Mo. App. 389; Porter V. Railway Co., 60 Mo. 100; Long v. Railway Co., 65 Mo. 225; Baker v. Railroad Co., 68 Ga. 699; Lake Shore & M. S. Ry. Co. v. Fitzpatrick, 31 Ohio St. 479; Guthrie v. Railroad Co., 11 Lea, 372; Fuller V. Jewett, 80 N. Y. 46; Drymala v. Thompson, 26 Minn. 40, 1 N. W. 255; Flike v. Railway Co., 53 N. Y. 549; King v. Railway Co., 72 N. Y. 607; Cone v. Railway Co., 81 N. Y. 207; Chicago & N. W. Ry. Co. V. Jackson, 55 111. 492; Toledo, W. & W. Ry. Co. V. Ingraham, 77 111. 309; Galveston, H. & S. A. R. Co. v. Delahunty, 53 Tex. 206; Paulmier v. Railroad Co., 34 N. J. Law, 151; Columbus & I. C. R. Co. V. Arnold, 31 Ind. 174; Indiana Oar Co. v. Parker, 100 Ind. 181; Cincinnati, H. & D. R. Co. v. McMuUen, 117 Ind. 439, 20 N. E. 287; Cincinnati, I., St. L. & C. R. Co. v. Roesch, 126 Ind. 445 26 N. E. 171.

Ch. 1] IMPLIED DUTIES OF THE MASTER. 3

that he will provide a suitable and reasonably safe place for the doing of the work to be performed by the servant ;2 (3) the providing of other servants when the circumstances require it, sufficient in number, and reasonably skillful and competent, for the performance of the service, so that the servant may not be exposed to unnecessary risk or peril from unskillful or incompetent workmen or servants, or from a lack of a sufficient number of them.^

In the performance of these duties, the master is bound to the exercise of reasonable and ordinary care, and such only."* The degree of care required in each of these particulars is the

' Bessex v. Railway Co., 45 Wis. 477; Heine v. Railway Co., 58 Wis. 531, 17 N. W. 420; Smith v. Car Works, 60 Midi. 501, 27 N. W. 602; Ferren v. Railway Co., 143 Mass. 197, 9 N. E. 608.

For other cases, see chapter 9, on Assumed Risks— Obvious De- fects—Structures. See, also, Append, p. 537.

'Wabash Ry. Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. 932; Laning v. Railway Co., 49 N. Y. 521; Flike v. Railway Co., 53 N. Y. 549.

'Chicago, B. & Q. R. Go. v. Avery, 109 m. 314; Richardson v. Cooper, 88 111. 270; Pennsylvania Co. v. Lynch, 90 lU. 333.

The authorities which sustain the doctrine of the text are many; the following, among others: Brymer v. Railway Co., 90 Cal. 497, 27 Pac. 371; Lawless v. Railway Co., 136 Mass. 1; Warden v. Rail- way Co., 137 Mass. 204; Painton v. RaQway Co., 83 N. Y. 7; Devlin V. Smith, 89 N. Y. 470; Slater v. Jewett, 85 N. Y. 61; Greenleaf v. Railway Co., 29 Iowa, 14; Cooper v. Railway Co., 44 Iowa, 134; Hunt V. Railway Co., 26 Iowa, 363; Wormell v. Railway Co., 79 Sle. 397, 10 Atl. 49; Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835; Marsh v. Chickering, 101 N. Y. 396, 5 N. B. 56; Kane v. Railway Co., 128 V. S. 95, 9 Sup. Ct. 16; Davis v. Hulett, 58 Vt. 90, 4 Atl. 139; Chicago, etc., Ry. Co. v. Cai-penter, 5 C. C. A. 551. 56 Fed. 453.

It is expressly held in the recent case of Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835, that the measure of duty to an em- ploy6 is not such as is due to a passenger or stranger. The same

4 IMPLIED DUTIES OF THE MASTER. [Ch. 1

same.s The authorities are all agreed that the degree required to be exercised is that of ordinary care; yet as to what meas- ure of diligence will constitute ordinary care in its rela- tion to particular facts and circumstances, and what com- parisons or tests may be, or ought to be, applied as a basis for determining whether the act or omission was the exer- cise of such degree of care, there is an apparent conflict.

It was Tery truly said by the federal supreme court in a recent case : ® "There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall constitute ordinary care under any and all circumstances. The terms 'ordinary care,' 'reasonable pru- dence,' and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed care in one case may under different surroundings and circumstances be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper

Is held in Hunt v. Railway Co., 26 Iowa, 363, and Carlson v. Phoe- nix Bridge Co., 132 N. Y. 278, 30 N. E. 750.

The degree of care required, as stated in the case of Wabash Ry. Co. V. McDaniels, 107 XJ. S. 454, 2 Sup. Ct. 932, is more than ordinary care. It is great and extraordinary care, at least, if not utmost care.

Great care is defined to be such care as is exercised by persons of unusually careful and prudent habits. Brand v. Schenectady & T. R. Co., 8 Barb. 368.

Utmost care means all the care and diligence in the nature of the case. Baltimore & O. R. Co. v. Worthington, 21 Md. 368; Brand V. Schenectady & T. R. Co., 8 Barb. 368. It means every possible precaution, no matter how unusual. Read v. Morse, 34 Wis. 318. Yet in a late case it was held to be a flexible term, and might ex- press no more than ordinary care. Atkinson v. Goodrich Transp. Co., 69 Wis. 6, 31 N. W. 164.

' Wabash Ry. Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. 932.

° Grand Trunk Ry. Co. v. Ives, 144 U. S. 417, 12 Sup. Ct. 679.

Ch. 1] IMPLIED DUTIES OF THE MASTER. 5

instructions from the court. It is their province to note the special circumstances and surroundings of each par- ticular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonably prudent men under a similar state of affairs."

The supreme court of Vermont defined ordinary care in the following comprehensive language: "A man in any sit- uation of business is always bound to conform to the rules and usages which prudent and careful men have estab- lished in the conduct of similar business under similar cir- cumstances; and the rule by which he is to govern the use of his own is that which is established by the concur- rent use of careful and prudent men in that particular business." ''

The supreme court of Ohio defined it "as such care as is most common and usual in the business." ^

The supreme court of Massachusetts say, relative to the term and its application: "No exact legal definition of these words, which will embrace all their meaning, and be precisely applicable to every possible case, can be given; that is to say, there is no such thing in existence as an ab- solute standard of ordinary care and prudence, to which the conduct of individuals in each particular instance can be brought, and by which it can be compared and tested. Care and vigilance should always vary, according to the exigencies which require vigilance and attention, conform- ing in amount and degree to the particular circumstan- ces under which they are to be exercised."^ In an- other case the same court said: "What is ordinary care cannot be determined abstractly. It has relation to,

' Vinton v. Schwab, 32 Vt. 612.

Mad Itiver & L. E. R. Co. v. Barber, 5 Ohio St. 541.

Holly V. Boston Gaslight Co., 8 Gray, 131.

6 IMPLIED DUTIES OF THE MASTER. [Ch. 1

and must be measured by, the work or thing done and the instrumentalities used, and their capacity for evil as well as good. What would be ordinary care in one case would be gross negligence in another. We look to the work, its difficulties, dangers, and responsibilities, and then say, "What would and should a reasonable. and prudent man do in such an exigency?' The word 'ordinary' has a popular sense which would greatly relax the rigor of the rule. The law means by ordinary care the care reasonable and pru- dent men use under like circumstances;"!" or, as expressed in another case, "such care as men of ordinary sense, pru- dence, and capacity would exercise under like circumstan- ces." "

In discussing the application of the term, the supreme court of Iowa used the following language: "It may be, and doubtless is, true, that under circumstances of great peril more prompt efforts should be put forth to avoid a threatened injury than are required under circumstances when the danger is less imminent; but this is only the exercise of ordinary and reasonable diligence. The care and diligence required are such as ordinarily prudent men usually exercise under such circumstances." ^^

In New York it was stated thus: "The rule is simple, practical, and easy of application. The question is, what would a majority of men of common intelligence have done under like circumstances? Ordinary care, skill, and dili- gence is such a degree of care, skill, and diligence as men of ordinary prudence under similar circumstances usually employ." ^^ As applied to appliances, the same court stated the test in the following words : "The master is required to

'" Cayzer v. Taylor, 10 Gray, 280.

" Shaw V. Rail-way Co., S Gray, 79.

" Willoughby v. Railway Co., 37 Iowa, 432.

"Ernst V. Hudson River R. Co., 35 N. Y. 9.

Ch. 1] IMPLIED DUTIES OF THE MASTER. 7

furnish such appliances as are reasonably safe and suitable; such as a prudent man would furnish if his own life was exposed to the danger that would result from unsuitable or unsafe appliances." **

In Ehode Island it was said to be "such care as prudent men skilled in the business would ordinarily exercise under the circumstances." i"*

It was said by a Pennsylvania court that "the test of negligence in methods, machinery, and appliances is the ordinary usages of business." *

In Wisconsin the supreme court say: "The degree of care is the same, whether the circumstances which require it suggest great or little danger. In either case, reasona- ble care, or, what is the same thing, ordinary care, only is required. The term 'reasonable care' has no fixed or defi- nite signification, but is a relative term. The caution which persons of ordinary prudence would exercise in any given case is 'reasonable care,' as the term is used under the law. That which under some circumstances might be reasonable care might under other circumstances be gross negli- gence." i® And again: "Ordinary negligence is the want of ordinary care, or of that degree of diligence which men in general exert in respect to their own concerns." ^^ In the latter case Judge Dixon very forcibly illustrated the controlling effect of circumstances upon the measure of care that ought to be exercised and maintained. He said: "The amount or kind of vigilance and caution requisite in each of the three degrees of care recognized by law as slight,

'•■ Marsh v. Chickeriug, 101 N. Y. 400, 5 N. B. 56; Carlson v. Bridge Co., 132 N. Y. 278, 30 N. E. 750; Burke v. Witherbee, 98 N. Y. 562. "■ Smith V. Old Colony & N. R. Co., 10 R. I. 22. * Titus V. Railway Co. (Pa. Sup.) 20 Atl. 517. " Read v. Morse, 34 Wis. 318. "Ward V. Railway Co., 29 Wis. 148.

8 IMPLIED DUTIES OF THE MASTEE. [Ch. 1

ordinary, and great is relative, and governed by the cir- cumstances of each particular case; and it is obvious that greater vigilance and caution may be needful in the exercise of ordinary care in some cases than is required to consti- tute what is termed in the law 'great care' in others. A person bound to only ordinary care of jewels or diamonds would be required to bestow more attention, and exercise greater vigilance and caution, than one bound to great care of wood or coal or other such articles; but notwith- standing these differences, arising from the nature or sit- uation of the thing to be cared for, the degrees of care as defined by law, and which depend upon the peculiar relations existing between the parties and the obligations arising therefrom, are not to be lost sight of or disregarded."

A very accurate statement of the question is made by the supreme court of Michigan. They say: "The degree of care required in any business must be proportioned to its nature and risks. The business of railroads is one of great risk, and requires great caution. Every one has a right to expect that railroads will be managed according to the common custom; and such companies have the right, in their turn, to expect conformity to this. Every person deal- ing with them has his own duty to perform, in harmony with theirs. AU railroad companies are held to the duty of being prudent railroad companies, and are bound to conduct their business with such precaution as prudence has usually found necessary. As compared with the care needed in business involving no human risk, the care required to be used may be called 'extraordinary,' but, as compared with each other, all have the same duty." i* '

There is but little, if any, substantial conflict in the foregoing cases, or, in fact, in the decisions in most of the

" Michigan Cent. Ry. Co. v. Coleman, 28 Mich. 448.

Ch 1] IMPLIED DUTIES OF THE MASTER. 9

states, either as to the degree of care required or the test which is to be applied. Different language, only, is used to express the same thing in substance; and I think it is safe to state the rule, as generally held, to be "such care, prudence, and caution as are exercised and used by ordi- narily prudent men, skilled in the business, under like cir- cumstances."

The supreme court of the United States, however, in late cases, has seen fit to question the rule; not as to the degree of care so much as the manner of expressing or defining it, and stating the comparison and test so usually applied.f They say: "Ordinary care on the part of a railroad com- pany implies, as between it and its employes, not simply that degree of diligence which is customary among those in- trusted with the management of railroad property, but such as, having respect to the exigencies of the particular service, ought reasonably to be observed. It is such care as, in view of the consequences that may result from negligence on the part of the employer, is fairly commensurate with the perils and dangers likely to be encountered. Ordinary care implies the exercise of reasonable diligence, and rea- sonable diligence implies, as between the employer and employ^, such watchfulness, caution, and foresight as, un- der all the circumstances of the particular service, a corpora- tion controlled by careful, prudent officers ought to exercise." The court further say they "cannot give their assent to the doctrine that ordinary care, in such cases, means only that degree of diligence which is customary, or is sanctioned by the general practice and usage which obtains, among those intrusted with the management and control of rail- road property and railroad employes; that a degree of care

t Wabash Ky. Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. 932.

10 IMPLIED DUTIES OF THE MASTER. [Ch. 1

ordinarily exercised in such matters may not be due or reasonable or proper care, and therefore not ordinary care, within the meaning of the law." The deduction which I draw from this language, as used, is that an imperative duty to exercise reasonable care in furnishing reasonably safe appliances cannot be excused on the ground of a general custom which would permit the disregard of such duty; that custom alone cannot excuse a failure of duty, as they say further: "If the general practice of such corporations in the appointment of servants is evidence which a jury may consider in determining whether, in the particular case, the requisite degree of care was observed, such practice cannot be taken as conclusive upon the inquiry as to the care which ought to have been exercised."

The exact meaning of the language used, however, is not very apparent, nor how far it was intended, if at all, to change or vary established precedents. There may be a wide distinction between what careful, prudent men or offlcers ought to do and what in general they are doing, or have done, or would do under the same circumstances. Men ought to exercise great care and caution in all their affairs, but experience teaches us that even the most prudent do not reach that standard. How or in what manner, or by what comparison or tests, if any, did the court intend that the degree of watchfulness, caution, and foresight such offi- cers ought to exercise should be determined, or by what standard is their conduct to be measured? Is it to be left to the mere caprice of a jury of uninformed or unskilled men, and are all tests based upon experience or practical use, as evidenced by such use, to be discarded? The most certain test of what is safe and proper, and the least likely to result in injustice, is that care which ordinarily prudent persons, having practical experience and skill, adopt in those matters which directly concern the management of their

Ch. 1"J IMPLIED DUTIES OF THE MASTER. 11

affairs, and which involve the welfare and safety of their persons or property. It is far safer to adopt the result of their prudence and judgment than to ignore it, and accept in its stead some other standard, even though, to the un- skilled or inexperienced mind, it may appear more practical, useful, or safe.

It would be very unsafe for a court to permit a jury to fix an arbitrary standard of duty in any given case. The causes of accident are best seen, and the danger to be apprehended therefrom best appreciated, after the event has occurred. The accident itself not only reveals the cause, but, more forcibly than aught else, suggests what might have been done to avoid it. But for the accident, there might have been nothing ordinarily to suggest dan- ger, even to the prudent. Yet a jury of men, such as ordi- narily, at least, constitute a panel, would be very apt to be influenced by what is suggested by the accident, and as- sume that it ought to have been anticipated, and that the standard of duty required of the master was such, and such only, as would have insured absolute safety. Courts, when requested, are required to instruct the jury as to ordinary care, and their duty is to make what it requires so plain that it can be easily and readily comprehended by the average mind. It would be very difficult to do so if all standards were ignored, and the jury, unrestrained, were at liberty arbitrarily to determine and say what ought or ought not to have been done in a given case.

In a more recent case the supreme court of the United States approved of a standard or test that is more in har- mony with what is undoubtedly the true rule, where the trial judge, in his instructions to the jury, used the following language: "You fix the standard for reasonable, prudent, and cautious men, under the circumstances of the case as you find them, according to your judgment and experience

12 IMPLIED DUTIES OF THE MASTER. [Ch. 1

of what that class of men do under these circumstances, and then test the conduct involved, and try it by that stand- ard." 19

" Grand Trunk Ry. Co. v. Ives, 144 U. S. 417, 12 Sup. Ot. 679.

Ch. 2J master's duty character op appliances. 13

CHAPTER II.

MASTER'S DUTY— CHARACTER OF APPLIANCES.

Not bound to furnish best, safest, or new^est. Such as are reasonably safe and suitable is the rule, pp. 14, 24.

This duty not absolute, but one of the exercise of reasonable care, pp. 14, 15, S4.

Must be such as are ordinarily suflB.cient for the purpose intended, p. 15.

Not required to anticipate extraordinary contin- gencies, only such as are likely to occur, p. 19.

Not bound to change his appliances to apply new inventions, pp. 19, 26, 30.

Must not permit his appliances to become unneces- sarily dangerous by being out of repair, p. 21.

Not liable for hidden defects -which are unknown, p. 21.

Not bound to provide against dangers from an unnecessary or inappropriate use of his appli- ances, p. 22.

Not required to regulate parts w^hich have to be adjusted in the course of their use, p. 23.

A dangerous practice not necessarily negligence, p. 23.

"Reasonably safe" means safe according to the usages, habits, and ordinary risks of the busi- ness, p. 24.

Standard of due care is the conduct of the average prudent man, p. 24.

14 master's duty CHARACTER OP APPLIANCES. [Ch. 2

Juries cannot set up a standard of their own -which shall dictate the customs or control of the bus- iness, p. 24.

The test of the character of appliances is general use, pp. 24, 25.

That a particular accident might have been avoided by the use of some special device not in com- mon use does not tend to show negligence, p. 25.

Hailroads must keep themselves reasonably abreast with improved methods, pp. 26, 29, 31.

Every one has a right to expect that railroads will be managed according to the common custom, pp. 30, 31.

Eflfect of long prior use without accident, pp. 26-29.

The manner of construction of appliances where skill is required not ordinarily a question for the jury, pp. 30-32.

The general rule as to the safe character of an ap- pliance has no application to such as the serv- ant is employed to repair, p. 33.

Must provide against liability of machinery to de- cay from age or wear out from use, p. 33.

Neither individuals nor corporations are bound, as em- ployers, to insure the absolute safety of the machinery or mechanical appliances which they provide for the use of their employes. Nor are they bound to supply the best and safest or newest of those appliances, for the purpose of securing the safety of those who are employed. They are, however, bound to use all reasonable care and prudence for the safety of those in their service, by providing machinery reasonably safe and suitable for the use of the latter.

•Oh. 2] master's duty character of appliances. 15

If the employer or master fails In this duty of precaution and care, he is responsible for any injury which may happen through a defect of machinery which was, or ought to have been, known to him, and was unknown to the employ^ or eervant.^

He may furnish such appliances as are ordinarily suffi- •cient for the purposes intended. If they are of an ordinary

•Washington, etc., K. Co. v. McDade, 135 U. S. 571, 10 Sup. Ot. 1044; McCombs v. Railway Co., 130 Pa. St. 182, 18 Atl. 613; Chi- cago, B. & Q. E. Co. V. Avei-y, 109 lU. 314; Richardson v. Cooper, «8 111. 270; Pennsylvania Co. v. Lynch, 90 111. 333; Eicheler v. St. Paul Furniture Co., 40 Minn. 263, 41 N. W. 975; Columbus & I. <3. Ry. Co. V. Arnold, 31 Ind. 174; Lake Shore & M. S. Ry. Co. v. McCormick, 74 Ind. 440; Indiana Car Co. v. Parker, 100 Ind. 181; Pennsylvania Co. v. Whitcomb, 111 Ind. 212, 12 N. E. 380; Cincin- nati, H. & D. Ry. Co. V. McMuUen, 117 Ind. 439, 20 N. E. 287; Cin- cinnati, I., St. L. & C. Ry. Co. V. Roesch, 126 Ind. 445, 26 N. E. 171; Wonder v. Baltimore & O. R. Co., 32 Md. 418; Baltimore & O. R. Co. V. Strieker, 51 Md. 47; Lawless v. Railway Co., 130 Mass. 1; Payne v. Reese, 100 Pa. St. 301; Hough v. Railway Co., 100 U. S. 213; Railroad Co. v. Fort, 17 Wall. 553; Ellis v. Railway Co., 95 N. Y. 546; Wilson v. WiUImantic Linen Co., 50 Conn. 433; Gunter v. GraniteviUe Manuf g Co., 18 S. C. 262.

The term "appliances of the business" embraces not only machin- ery, premises, and all the Implements of every kind used in and about the business, but also the persons employed to operate them. Johnson v. Ashland Water Co., 71 Wis. 557, 37 N. W. 823; 3 Wood, Ry. Law, p. 1487, § 381.

The master is bound to the exercise of reasonable and ordinary care and diligence, and such only, in providing safe tools, appli- ances, and machineiy for the use of his servants. Chicago, B. & Q. R. Co. V. Avery, 109 111. 314; Kranz v. White, 8 lU. App. 5S3; Richardson v. Cooper, 88 111. 270; Pennsylvania Co. v. Lynch, 90 lU. 333. He is not bound as an insurer for its absolute safety and suitability. Camp Point Manuf'g Co. v. Ballou, 71 lU. 417; Rich- ardson V. Cooper, 88 111. 270; Pennsylvania Co. v. Lynch, 90 111. -333; Indianapolis, B. & W. Ry. Co. v. Toy, 91 HI. 474.

The duty of the master to fiurnish safe appliances is not affected

13 master's duty CHARACTER OF APPLIANCES. [Ch. 2

character, and such as can, with reasonable care, be used without danger, except as may be reasonably incident to the business, it is all that the law requires.^ While such, in general terms, are the duties imposed

by the fact tliat he does not own the instrument fui-nlshed. Chi- cago, B. & Q. R. Co. y. Avery, 109 111. 314.

If the defect in machinery or appliances is such that the master, in the exercise of ordinary care, icouUl have discovered it, he is lia- ble; but it cannot be said that the master is liable vyhen the defect is such that, in the exercise of such care, he could have discovered it. That vcould fiu-ther extend the liability. The Norway v. Jen- sen, 52 lU. 373; Wabash, St. L. & P. Ry. bo. v. Moran, 13 111. App. 72.

Where the master has fm-nished tools and appliances not the best, but such as may be used without danger by ordinary care, he has discharged his duty. Pittsburg & C. R. Co. v. Sentmeyer, 92 Pa. St. 276.

An engine used on a regular freight train without a cowcatcher or pilot is defective. Tennessee Coal, Iron & Ry. Co. v. Kyle (Ala.) 8 South. 764.

Negligence may be inferred from the nature of a defect. Mateer V. Missouri Pac. Ry. Co. (Mo. Sup.) 15 S. W. 970.

It is not negligence per se, as between master and servant, to

= Wormell v. Railroad Co., 79 Me. 404, 10 Atl. 49; Pittsburgh & C. R. Co. V. Sentmeyer, 92 Pa. St. 27G; Greenleaf v. Railway Co., 29 Iowa, 14; Burns.v- Railway Co., 69 Iowa, 452, 30 N. W. 25; Mad River & L. B. R. Co. V. Barber, 5 Ohio St. 541; Marsh v. Chickering, 101 N. Y. 400, 5 N. E. 50; Carlson v. Bridge Co., 132 N. Y. 278, 30 N. E. 750; Lyttle v. Railway Co., 84 Mich. 289, 47 N. W. 573; Lake Shore, etc., Ry. Co. v. McCormick, 74 Ind. 440; Indiana Car Co. v. Parker, 100 Ind. 187; Trask v. California S. R. Co., 63 Cal. 96; Lawless v. Rail- way Co., 136 Mass. 1; Ellis v. Railway Co., 95 N. Y. 546; Wilson v. Willimantic Linen Co., 50 Conn. 433.

Where the undisputed evidence shows that the machinery by which a servant was killed was that in general use, and was re- garded as reasonably safe if prudently used, it is sufficient, though better machinery exist Lehigh & W. Coal Co. v. Hayes, 128 Pa. St. 294, 18 AU. 387.

Ch. 2] master's duty character of ArPLIANCES. 17

upon the master, yet what the specific duties enforced upon him are which will constitute the degree of care required, or the omission of which will constitute a want of such care, must, of course, depend upon the particular circumstances

omit to cover or protect a buzz saw; but the question depends upon the circumstances of each case, the nature of the service, the de- gree of the exposure, and notice thereof to the servant. Carroll v. Williston, 44 Minn. 287, 46 N. W. 352.

It is a question for the jiu-y whether a switching rope furnished for use in coupling cars, one of which had no drawhead, was a rea- sonably safe appliance. Muirhead v. Hannibal & St. J. R. Co., 103 Mo. 251, 15 S. W. 530.

Bumpers on an engine and cars, when of unequal height, are de- fective appliances. Donohue v. Brooklyn City R. Co. (City Ct. Brook.) 14 N. Y. Supp. 639. Bumpers on cars of unequal height are defective appliances, when suitable links to couple them are not provided. Denver, T. & G. R. Co. v. Simpson, 16 Colo. 55, 26 Pac. 339.

Switches in yards without lights on them are not defective ap- pliances, unless it appears that it was the common and uniform practice to have such lights, and that switchmen had a right to expect them. Grant v. Union Pac. Ry. Co., 45 Fed. 673; Town v. Michigan Cent. Ry. Co., 84 Mich. 214, 47 N. W. 665.

A telltale, though located and arranged so as to be sufficient for persons on cars of ordinary height, which yet is dangerous, or would not subserve its purpose for persons upon cars of greater height which have come into use for special purposes, is a defective ap- pliance. Darling v. New York, P. & B. R. Co., 17 B. I. 708, 24 Atl. 402.

It is not negligence per se for a railroad company to adopt a de- vice for coupling cars, not before in use on its road, without dis- carding those already in use by it, although the use of the two together may be more hazardous than would be the use of either alone. Pittsburg & L. E. R. Co. v. Henly, 48 Ohio St. 608, 29 N. E. 575.

The fact that a coupling of the character used by defendant was In general use among railroad companies only tends to show ordinary care in its selection, and is not conclusive evidence that

MAST. AND SBRV. 2

18 master's duty CHARACTER OF APPLIANCES. [Ch. 2

of each case. It must be kept in mind that ordinary care as to safety of appliances and premises does not require that every possible contingency must be anticipated and guarded

defendant was not negligent. Martin v. California Cent. Ry. Co., 94 Gal. 326, 29 Pac. 645.

In the construction of a railroad, the single spiking of a rail upon three ties, and the omission to spike the fourth, upon a curve of five or six degrees, is a defect. Colorado Midland Ry. Co. v. Nay- Ion, 17 Colo. 501, 30 Pac. 249.

Not removing an accumulation of snow, ice, and dirt on the flanges of rails is negligence, and makes the appliance defective. McClar- ney v. Chicago, M. & St. P. Ry. Co., 80 Wis. 277, 49 N. W. 963.

When side tracks are so constructed that, when cars are standing thereon, freight trains cannot pass without endangering the lives of bralcemen engaged in the discharge of their duties, such tracks are defective as appliances. Pennsylvania Co. v. McCormack, 131 Ind. 250, 30 N. E. 27.

Where a servant was injured by the explosion of a lamp, to be used in removing old paint from cars, there being evidence that the cause of the explosion was an escape of gas from the lamp, where it had been soldered by soft solder, and that soft solder would be likely to melt, negligence was a question for the jury. Wood v. Illinois Cent. R. Co., 23 111. App. 370.

A railroad company is liable for injuries sustained by a yardmas- ter coupling cars, which