Whatley v. Block

Simmons, Chief Justice. This was an action by a servant against a master for personal injuries received in the course of his employment. The declaration alleged various acts of negligence on the part of the master. As this is not a case against a railroad company, the general law- governing master and servant applies, and the presumptions are all in favor of the master, and the burden of overcoming them by evidence is upon the plaintiff". In this class of cases the master is not liable to the servant for the 16 negligence of a coservant unless it be shown that the master employed such coservant with knowledge that he was careless or incompetent, or retained him in the service after his'unfitness was discovered. No allegation that the master was at fault in this respect is made in the declaration. We have carefully read the evidence in che record, and in our opinion the plaintiff totally failed to establish by his evidence any of the allegations of negligence made in the declaration. There was some evidence of negligence on the part of a co-employee in moving the elevator without notice to the plaintiff, but this we have shown is not imputable to the master. As to the absence of a railing around the hole in the floor through which the elevator passed, there was no evidence that such a railing was necessary in order to perform the work with safety. No general rule or custom in regard to placing such railings around other elevators of the same class was shown, so as to charge the master with notice that it was proper and necessary to do so. “A custom with reference to the adoption of certain safeguards in a given business must be so general that it is presumed that the defendant had knowledge of it, in order to make him liable for neglecting to provide the same.” 14 Am. & Eng. Enc. of Law, pp. 908, 904. Besides, if the absence of a railing rendered the work dangerous, the servant knew it as well as the master; and it is an established principle of law that the servant takes upon himself the hazard of all known dangers connected with the service. Of course if by want of ordinary care he fell into the hole, knowing it was there, he could not recover. The evidence failed to show that the master was guilty of negligence in not promulgating rules for the government or running of the elevator. It was not shown that such rules were necessary, or if necessary, what were the proper rules for this purpose; nor was it 17 •shown that there was a general custom on the part of other persons owning elevators to promulgate rules .for. their government. After a careful consideration of the case, we are forced to the conclusion that the court was right in awarding a nonsuit. Judgment affirmed.