McAndrews v. Montana Union Railway Co.

Pemberton, C. J. — The appellant contends that the verdict is not supported by the evidence, in that it appears from the evidence of the plaintiff, clearly, that, if the handcar was defective and dangerous, the plaintiff had full knowledge thereof; that he used it voluntarily; that he did not use it with proper care; that he never refused to use the car, and that no threats or inducements were used by the defendant or the foreman to induce him to use it. This contention requires an examination of the testimony offered by the plaintiff. It appears from the plaintiff’s own testimony that he was a man of considerable experience in the kind of work he was employed in doing at the time he was injured, he having been engaged in this character of work for about three years before — 296 — this. He states in his complaint that the car was defective and dangerous, and that, about fifteen days before the accident, he so informed the foreman. He swears that on the day of the accident, and just before it occurred, he told the foreman “ that the car was unsafe, and that he was afraid it would kill somebody,” and that the foreman replied: “ Get on that car. It is all right. We will soon get a new one.” In another place he says: “The foreman said he was going to get a new car in a few days. He told me to get on the car and use it as carefully as we could, and get along the best we could.” In describing the condition of the car at the time he was using it the plaintiff says: “As to what was the trouble with the car, as near as I can judge, she used to wabble. Her boxes were too loose, and she would wabble from one side to the other, and she was too loose, and out of running order. Furthermore, there was no brake on the car — that is, that could be used. It was an old car, and, in fact, I could n’t even find the date on it, or the number of it. It was an old car, being, I guess, used for many years. I could n’t say how many. Her wheels were what I would call ‘ wood and iron,’ and here, where the iron runs out from where it is on the axle, the wood was loose; the wheels were wood, along with the iron inside the iron, and where the wood fastened into the boxing around the axle some of the wood was loose, and would work in and out. That was the ear that I was on the morning that I was injured.” The plaintiff also swears that he had heard of this car jumping the track before this, and on one occasion it jumped the track when he was present, when the evidence shows it was being run at about four miles an hour. At the time of the accident plaintiff says they were not going any “faster than between five and seven miles an hour, as near as he could judge.” The plaintiff says that when he was told to get on the car by the foreman he could not say whether the car was all right or not, but supposed the foreman knew more about it than he himself did, because he was the foreman, and was supposed to know more about it than he did. This is substantially all that plaintiff’s testimony shows that the foreman did or said to induce him to use the car. Martin McManimee, the section foreman, was introduced ag — 297 — a witness on the part of the plaintiff. He and plaintiff are cousins. His testimony corroborates that of plaintiff in the main, as to the condition of the car. He says plaintiff, just before the accident, spoke to him about the car, saying it was not safe. He says: “ I told him we had to do the best we could. I told him to get on the car, and go to Garrison. I expected that any time.” In another place he says: “The condition of the car on which McAndrews was riding that morning was that for months before it was not fit for any white man to put it on a track.” In another place this witness says: “McAndrews had complained about this car,'and all the men on that section had made the same complaint. It had frequently left the track with me before this accident. It is easy for any man to know how she would leave the track.” He says the axle was bent. He says, at the time of the accident, “ she was running, perhaps, between six and seven and eight miles an hour; not faster.” It appears that there were two cars on the track going to Garrison at the time of the accident; that plaintiff was on and in charge of the front car, and the foreman in charge of the other; that the cars were running very closely together — so closely that they frequently struck each other — before the accident. He says that this car left the track with him once, about two weeks before the accident, going at the rate of not more than four miles an hour, and that plaintiff was present. He says the car had a “ bent axle,” and “ was out of repair in every shape from the first day she came to Garrison.” McManimee further testifies: “ When McAndrews complained, I told him that Sawyer always told me that he would send a new car as soon as he could get one, and to get along the best way he could until such time. Sawyer told me he would send a new car as soon as he could. I did not know when he would send it. I ordered McAndrews to go ahead anyhow, and use the car. I did not threaten to discharge him if he did not use the car.” He further swears that he never in his life “told a man that he would have to take his time if he did not use a car.” Again, this witness says: “ Several times before this, McAndrews had said that the car was unsafe, which I knew, but he never refused to use it — that is, straight out refused; he always grumbled a little.” In answer — 298 — to a question, the witness says he did not order plaintiff to take this car against his will, for he says: “ I could n’t order any man against his will.” From the foregoing statement of the evidence offered by the plaintiff it is evident that he had full knowledge of the condition of the car at the time of, and for a long time prior to, the accident, and that he continued to use it, knowing that it was dangerous to do so. This would certainly be a bar to his right of recovery, unless he has shown that the defendant promised to get a new car, and held out to him some sufficient inducement or assurance to continue to use the car in its defective condition, and that he did continue to use it on account of such inducement or assurance. It is claimed by plaintiff that the foreman, having promised to secure a new car in place of the defective one, and having told him to go ahead and use the old one and do the best he could, exercising proper care in the use thereof, constitutes such promise to get a new car, and such an inducement, as justified him in continuing to use the dangerous one. The law governing this contention is thus stated by Mr. Justice Harlan in Hough v. Texas etc. Ry. Co., 100 U. S. 213: “There can be no doubt that, where a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby within such a period of time after the promise as it would be reasonable to allow for its performance, and, as we think, for an injury suffered within any period which would not preclude all reasonable expectation that the promise might be kept.” But this rule isa qualified one. If the machinery is not only defective, but so obviously dangerous that no ordinarily prudent man would assume the risk of using it, and the employee does use it, knowing its absolutely and obviously dangerous condition, and the dangers of using it, the master is not liable, notwithstanding the promise to remedy the defect. This qualification to the rule is well stated in Railway Co. v. Watson, 114 Ind. 20, in the following language: “Where an employee knows that the danger is great and immediate, such as a reasonably prudent man would not assume, he cannot recover for an injury, even though he remained in the employer’s service in reliance upon the latter’s promise to remedy the defects — 299 — winch produced the danger.” (2 Thompson on Negligence, 1011; Patterson v. Railroad Co., 76 Pa. St. 389; Kane v. Railroad Co., 128 U. S. 91; 9 Sup. Ct. 16; Furnace Co. v. Abend, 107 Ill. 45.) The plaintiff in this case testifies that he knew the condition of the car; said somebody would get killed using it; he had known its condition for a long time; remained in the defendant’s service long after the alleged promise to get a new car; had seen the car jump the track going at a rate not faster than four miles an hour; says the foreman told him to use the car with great care, and do the best he could until he could get a new one; he never refused to use the car; he was never threatened to be discharged if he did not use it. McManimee, plaintiff’s cousin, says the car was so defective that anybody could see it; “that no white man would put it on a track”; that he told plaintiff to use it and to do the best he could, using great care, until he could get a new one. Notwithstanding plaintiff’s familiarity with the condition of the car, his knowledge of the fact that it had jumped the track going at a rate not to exceed four miles an hour, on the morning of the accident, immediately after saying that the car was so dangerous that it would kill somebody, he got on the car, in charge thereof, and propelled it at a rate of speed somewhere between five and eight miles an hour, over the bridge where the car left the track, and he incurred his injuries. Prom this view we fail to see, and are unable to find from the evidence, any support for the contention that he was induced to remain in the service of defendant and use,the dangerous car, by the promise or assurance of the foreman to furnish a new one as soon as he could get it. And, further, it appears, if he did so, that he disregarded the admonition of the foreman to exercise extraordinary care in the use of the car, and that he was guilty of contributory negligence in propelling this dangerous car at such a rate of speed in going over a bridge forty feet high, where the accident occurred. There are many authorities that hold that where an employee, having knowledge of the defective condition of machinery with which he is required to work, gives notice of such — 300 — defective condition to the employer, and is induced to remain by the promise of the employer to repair the same, he may recover for injuries sustained, notwithstanding his knowledge of the condition of such machinery, especially where the danger is not absolute and immediate. But in many of such cases the right to recover is based upon the express promise to repair. But we think the evidence in the case at bar does not bring it within this rule. In the case at bar there was no express promise to repair, or get a new car, and no such assurance or promise to do so was relied upon by plaintiff. . The. most that can be said is that the foreman informed plaintiff that he had asked for a new car, that he expected it at any time, and directed the plaintiff to use the car in question with, great care, until he could get a new one. Besides, we think the evidence very clearly shows that plaintiff was guilty of such recklessness in the use of the car, especially in the manner in which he was using it at the time of the accident, as no reasonably prudent man would be guilty of, knowing, as he did, its dangerous condition; and that, by such action, he so far contributed to his own injury as to defeat his right of recovery in this case. The plaintiff knew perfectly the defective and dangerous condition of the car, and the risk he assumed in using it. He could not shut his eyes to these well-known things, and recover for injuries sustained by reason of his want of ordinary prudence. Knowing the condition of the car, as plaintiff did, no reasonably prudent person would have asr sumed the risk of using the same in the manner plaintiff did, even upon any promise made to furnish a new car by the foreman; The plaintiff cannot recklessly use dangerous machine ery, and assume recklessly the risk of so doing, and then recover on the promise of defendant to repair or furnish new machinery, if such promise had been made. It is unnecessary to consider other assignments of error in this case, especially those as to the instrnctions. As the instructions for the plaintiff were given upon the theory that the evidence was sufficient to authorize a recovery, they were erroneous. We think the court erred in overruling a motion for a new trial. — 301 — The judgment is reversed and cause remanded for new trial. Reversed. Hunt, J., concurs. De Witt, J., having been of counsel, did not sit in the case.