Sprow v. Staples

Mr. Chief Justice Shepard delivered the opinion of the Court: The direction of the verdict appears to have been upon the following grounds: (1) The declaration charging that the injury resulted from two acts of negligence in respect of the appliances furnished, and there being no attempt to prove but one, the case alleged was not proved. (2) The evidence failed to show how long the appliance had been in use, or that the defendant had any notice or knowledge of its defective condition. The appellee seeks to support the judgment on the additional ground that the evidence clearly showed that the injury received by the plaintiff’s intestate was the result of his own negligence. These propositions will be considered in the order stated. 1. On a former trial the declaration was stricken out on motion of the defendant, on the ground that two sepai’ate causes of action were set out in one count. Plaintiff declining to amend, judgment was rendered against her. On appeal that judgment was reversed. Flynn v. Staples, 34 App. D. C. 92, 27 L.R.A. (N.S.) 792. The appellant, as stated in the opinion in that case, contended that the two acts of negligence alleged in the declaration conjunctively constituted the cause of action, and were so closely connected that they could not be considered separately. In stating its conclusion, the court said that the two acts of negligence, as charged, contributed, or were capable of contributing to produce the explosion; each charge of negligence tended to support the other, and their effect was cumula [226] tire. The point decided tras that two distinct acts of negligence resulting in or contributing to one injury could be charged in one count; but it was not said in the opinion that if two such separate acts of negligence were charged, both must be proved to entitle the plaintiff to recover. The injury complained of is the cause of action. It may have been the result of one of several distinct acts of negligence, or it may have been contributed to by all of them, or by more than one. That is a matter of proof. If the plaintiff can prove one act of negligence sufficient to cause an actionable injury it is enough. Weber Wagon Co. v. Kehl, 139 Ill. 644-656, 29 N. E. 714; New Work, C. & St. L. R. Co. v. Robbins, 38 Ind. App. 172-175, 76 N. E. 804; Savannah, F. & W. R. Co. v. Evans, 121 Ga. 391—397, 49 S. E. 308; O’Connor v. Boston & L. R. Corp. 135 Mass. 352-358; Louisville & N. R. Co. v. Shearer, 119 Ry. 648, 59 S. W. 330. The declaration alleged that defendant neglected his duty in permitting the steam pipe of the boiler urn to become so rusted and clogged, through want of necessary inspection and repair, as to prevent the proper passage of air and steam through the same. As an additional act of negligence of duty in respect of supplying safe appliances, it was charged that the defendant failed to provide a steam gauge in the supply pipe for steam from the main boiler in the basement to the boiler urn. On the trial, plaintiff made no attempt to show that it was neglect of duty not to provide the steam gauge in the supply pipe, but limited her proof of negligence to tire rusted and clogged pipe leading to the safety valve in the top of the boiler urn, which she claimed resulted from the failure of due care on the part of the defendant. This being a separate and distinct act, she was not compelled to prove the other. 2. It is the duty of an employer to provide suitable and reasonably safe machinery and appliances for the use of his employee, and to keep the same in proper repair where the rise is a continuing one. This duty to keep in repair carries with it that of making a reasonable inspection to ascertain if repair is needed to keep the machinery and appliances in safe condition [227] for ordinary use. Texas & P. R. Co. v. Barrett, 166 U. S. 617, 41 L. ed. 1136, 17 Sup. Ct. Rep. 707; Looney v. Metropolitan R. Co. 200 U. S. 480-486, 50 L. ed. 564-568, 26 Sup. Ct. Rep. 303; Washington & Q. R. Co. v. McDade, 135 U. S. 554-570, 34 L. ed. 235-241, 10 Sup. Ct. Rep. 1044. But the employer is not a guarantor of the safety of the employee, and the fact that an accident has occurred, resulting in injury to the employee, raises no presumption of neglect of duty on the part of the employer. Neglect of duty must be proved as a fact to entitle the employee to recover damages for an injury received through an accident to the machinery and appliances in use. Where evidence has been given by a plaintiff, the court is never justified in directing a verdict against him, except in cases where, conceding the truthfulness of the witnesses and giving full effect to every legitimate inference deducible from their testimony, it is nevertheless plain that the party has not made out a case sufficient in law to entitle him to a verdict. Adams v. Washington & G. R. Co. 9 App. D. C. 26—30, and cases cited; Dodge v. Rush, 28 App. D. C. 149-154, 8 A. & E. Ann. Cas. 671. Plaintiff’s evidence was to the effect that the pipe leading to the safety valve in the top of the boiler urn, originally suitable and safe, had become clogged with rust and sediment to such an extent that the safety valve and inlet for air ceased to perform their necessary functions, thereby causing the explosion or collapse of the boiler. The negligence, if any, consisted in the failure of the defendant to properly inspect the appliances, so that the clogging of the pipe might have been discovered and removed by suitable cleaning. This duty of inspection and repair must necessarily depend upon the circumstances of the particular case. Reasonably, it must vary according to the more or less dangerous character and uses of the appliances, the duties of the employer with respect thereto, his knowledge or means of knowledge of the conditions, and other circumstances. It is true, as argued', that the evidence did not show how long the appliances had been in use without inspection or repair, but it did show that the accumulation of rust and sediment in the [228] safety-valve pipe and air inlet was the growth of “many months/’ and that its injurious consequences could have been prevented by cleaning every sixty days, at least. Tested by the principle before stated, we think that this evidence was sufficient to require the submission of the defendant’s neglect of duty to the jury. 3. The court did not direct the verdict on the ground of contributory negligence on the part of plaintiff’s intestate. Nor, in our opinion, can the judgment be made to rest thereon, regardless of the grounds specially assigned. Contributory negligence of the plaintiff is matter of defense, and, unless disclosed in proving the plaintiff’s own case, must be established by evidence. Defendant contends that it was the duty of the intestate to clean and keep the appliances in repair, and that the clogged condition of the pipe was open to his observation. Whatever the facts may be, the defendant offered no proof of them, and we fail to find in the plaintiff’s evidence anything from which it may be necessarily inferred that it was his duty to inspect and clean the pipes, or that their dangerous condition was open to his observation to the extent that he must be held to have taken the risk of their use without cleaning or repair. So far as the evidence discloses, it was his duty to make use of the appliances in making coffee. There is nothing to show that it was part of his duty to inspect the apparatus, and to keep it clean and safe for use. If it can be shown that it was the duty of the intestate to keep the appliances clean and in safe condition, or that he had actual knowledge of the defective condition of the pipe, or that the same was open to ordinary observation in the performance of his services, he must be deemed to have accepted the risk of all danger reasonable to be apprehended from his use of the same. But these conditions must be-shown by the defendant in order to bar recovery in case the jury should find that he had been guilty of negligence. The judgment will be reversed, with costs, and the cause remanded for another trial. Reversed.