Phil. & Read. R. v. Hughes

— 312 — Opinion, Mr. Justice Clark: The plaintiff, Jeremiah A. Hughes, was, at the time he received the injury complained of, on September 29, 1871, a brakeman in the employ of the Philadelphia & Reading Railroad Company, and in the performance of his duty as such employee. There was therefore, in the mere fact of the injury, no presumption of negligence on the part of the company, as in the case of a passenger; the burden of proving negligence rested upon the plaintiff. It was the duty of the company to exercise ordinary care in adopting, providing and maintaining safe cars, with suitable appliances and machinery, with which the plaintiff might transact the business of the company within the line of his duty; not the very best machinery which could be procured, or that which combined the latest device or improvement, as a precaution against danger, but such as was reasonably safe, and in common use. It was the duty of the company also to use ordinary and reasonable care in the employment of his fellow-servants or employees, and to dismiss any of these whom they might know, or in the exercise of ordinary diligence should have known, to be careless, or unfit for the places assigned them. On the other hand, the plaintiff will be understood to have assumed not only all the risks incident to his employment, but also those arising from the negligence of his fellow employees in the same circle of employment. Moreover, as we said in Rummell v. Dilworth, 111 Pa. 343: “If a person specially undertake to perform a peculiarly perilous work, by operating a machine obviously wanting in suitable appliances for safety, knowingly and voluntarily, he cannot after-wards complain, in case of injury in consequence thereof, that the machinery was of a dangerous kind, and that it was wanting in appliances reasonably necessary to render it safe. So, upon an analogous principle, if an employee, after having a full and fair opportunity to become acquainted with the risk of his situation, makes no complaint whatever to his employer as to the machinery which he knows to be wanting in appliances for safety, takes no precaution to guard against danger, but, accepting the risks, voluntarily continues in the performance of his duties, he cannot complain if he is subsequently injured by such exposure.” — 313 — Now, it is conceded that the brakes upon all the Mine Hill cars were of the kind which caused the injury; that the difference in their construction from others in use was open and obvious; that Hughes had been a brakeman on these cars for three years and upwards, and that if the operation of this brake was peculiarly perilous, he knew, or by reason of his long experience ought to have known, the fact. He admits f that he made no complaint whatever, and that he continued in the company’s service; the inference is irresistible, therefore, that he accepted the risks incident to this particular employment. He was not bound to risk his safety in the service of the company, and if he knew the brakes to be wanting in any appliance which would be a precaution against danger, it was his duty to decline to operate them. Having undertaken the performance of duties he knew to be hazardous, he assumed the risks incident to their discharge. In this view of the case, the peculiar construction of the brakes was a matter of little importance; the main question of difficulty arises out of the fact that when Hughes stepped upon the brake, the iron pin, which passed through the fork at the lower end and formed the fulcrum of the lever which held the brake block in place, either broke or dropped out, and Hughes fell to the ground and under the wheels. This pin was ordinarily kept in place by a key, but as neither the pin nor the key was afterwards found, it is impossible to state from what cause the accident occurred, whether the pin was broken, or whether it fell out from some defect or displacement of the key. There is some evidence that this car, No. 7, had been rebuilt shortly before the occurrence. The negligence of the company in the rebudding of the car is not to be presumed. The presumption is that the pin was made of proper materials, and that presumption is greatly strengthened by the testimony of Daniel Grimm, the blacksmith, who says that it was made of good iron and was properly adjusted and secured when it left the shop. Upon a careful examination of the testimony, we fail to find the slightest proof that the iron in this pin was bad; and there was literally no evidence to justify the jury in coming to any such conclusion. We do not even know that the pin broke; it may have fallen out. The key may have — 314 — been removed; the evidence shows that they are sometimes taken out and imperfectly replaced. The jury would not have been justified in determining that the pin was of bad iron upon mere conjecture. We think the court should not have referred this question to the jury; the presumptions and the proof were all to the effect that the iron was good, and the jury should have been so instructed. We are of opinion that the defendants’ fifth point should have been affirmed without qualification. The second specification of error raises the question, whether or not there was any evidence that the company failed to furnish and maintain suitable tools and appliances for the use of the plaintiff. There was no evidence, as we have said, aside from the peculiar construction of the brake, that the car was imperfectly constructed. But the point which was refused involves also the question of proper inspection and repair. It is undoubtedly the duty of railroad companies to exercise ordinary care in the maintenance of the machinery and tools which they put into the hands of their employees, and to institute proper reasonable regulations for the safety of their employees in this respect; but this rule of duty must be taken in a practicable and reasonable sense. The company does not insure the life of its employees; the servant assumes, as we have said, the ordinary risks of his employment, and if any defect in the tools or machinery placed in his hands becomes apparent hi their use, it is the duty of the servant to observe and report to his employers, for the servant has means of discovering defects, which the master may not possess. If, however, the company employ competent and skilful persons for the purpose of inspection, and afford them reasonable opportunities and facilities for the work under proper instructions, the company will not ordinarily be liable for the negligent performance of the work by their employees, to a fellow employee, unless the com-, pany knew, or by ordinary diligence ought to have known, of the defective manner in which the inspection was conducted. We are clearly of opinion, too, that a brakeman and a car inspector are in the same circle of appointment; they co-operate in the same business, and the former knows that the employment of the latter is one of the incidents of their common service. But whilst the performance of the duty of inspection — 315 — must necessarily be committed in detail to tbe employees, tbe general regulation is in the hands of the company, and it is the duty of the company to provide suitable persons, in sufficient numbers, at proper places, with reasonable opportunities to accomplish the work. The evidence would seem to show that there were three points for the inspection of these cars within twenty miles; at Schuylkill Haven, where the empty cars were inspected on their way to the mines, on the Gordon Plane, and at Cressona, where the loaded ears were inspected as they came from the mines; besides other alleged inspections to which the cars were subjected at the coal chutes, and by Daniel Grimm, who, it is said, had these cars in his special charge. The inspections at these points were not minute or critical; they were limited to a hurried examination of the most exposed and important points; the cars were subjected to a thorough examination only when turned into the shop for repairs. Whether this provision of the company in view of the heavy grades along the road, and the number of cars to be inspected, was a reasonably adequate one, would, if the question were material, be for the determination of the jury. It is absurd, however, to suppose that in these inspections the company was required to remove the bolts, screws, pins, or other appliances belonging to the machinery of a car, en route, in order to detect any possible imperfections. A railroad or other employer is not required to exercise that exquisite and exhaustive care in the constant examination and overhauling of its machinery and works, which would be incompatible with the proper furtherance of business: Whart. on Neg., 213. But is there any evidence that the injury complained of was attributable .to a negligent inspection ? Was there any defect in this brake which any reasonable provision for inspection would have disclosed? Bearing in mind that the burden of proof rests upon the plaintiff, is there any evidence that the pin was defective ? It was properly constructed; it was of the size used in all the brakes; the proof as well as the presumption is that the iron was good, or was believed to be good. It was properly secured by a key, and had been in use for several months. It is conceded that the brake was in proper condition on the grade above Minersville, and the accident occurred, as — 316 — we understand the ease, only three or four miles distant from that place, whilst the next place of inspection was at Cressona, a short distance below. But, if the iron was bad, was the defect such as might have been detected upon any reasonable inspection? Was it such a defect even as could have been observed if the pin had actually been withdrawn and examined ; or was the defect latent, such as could not have been observed? Did the pin break at all? If it did, was it the result of accident or negligence ? If the pin did not break, says the plaintiff, it fell out from displacement of the key. Is there any evidence that the key had fallen out or been removed? Was the jury to guess at the real facts of the case and to determine these questions of fact upon mere conjecture ? The plaintiff undertook to trace the injury to the negligence of the company, and until he can show some negligent act which was the proximate cause of his injury, he cannot recover. We know that when Hughes stepped on the brake with his whole weight it went down, and that he went with it. But whether the pin broke from any defect which a proper inspection would have disclosed, does not appear; that it broke at all is not shown; nor is there any evidence that the occurrence was owing to a dislocation of the key. It devolved upon the plaintiff to show negligence of the company, and that that negligence was the proximate cause of the injury. In this he has failed, and in the absence of proof on that point we cannot ascribe the accident to that cause. The judgment is reversed.