Atchison, Topeka & Santa Fé Railroad v. McKee

Opinion by Holt, C.: The defendant makes a number of assignments of error, and they are all properly raised by the demurrer to the plaintiff’s evidence, and objections to the instructions given; by exceptions to the instructions asked and refused, and by motion for judgment on the findings for defendant, and motion for a new trial. Before we proceed to examine them in detail, we will state that the first ground of negligence alleged by plaintiff has no support whatever under the evidence introduced. It appears that the “ odds and ends ” of the timber cut at other saws in the shop were brought to [600] plaintiff’s form or bench, and that he was to pick out therefrom. such pieces as he thought could be worked to advantage. It was his duty to select such pieces as he thought fit, and reject those pieces that he thought unfit for use. This duty was given to him alone. He testified, and it is undisputed, that he examined the block, and supposed it to be suitable for use in making truss-rod blocks, and that the splinter or sliver that became dislodged from the block in sawing could not have been seen by an examination of the block. Certainly under this statement of facts there was no negligence of the company nor of the plaintiff. The findings were in keeping with the evidence. The second ground of negligence — that the saw was defective — is partially supported by the testimony, but it is fairly established by the evidence that such defect did not contribute to the injury of the plaintiff. In this connection we call attention to the following: “28. Did the condition of the saw which plaintiff was using at the time of the accident contribute in any manner to his injury? Ans.: It might, or it might not. “29. If you answer the last question in the affirmative, please state fully how it so contributed. A. -.” “34. Would not the sawing off of a wedge-shaped sliver from a block of wood similar to the one which was sawed off at the time of plaintiff’s injury probably throw said block from the saw by driving said wedge-shaped sliver between the saw and the block, even if the saw was in perfect condition, or new ? A. Probably it would.” [601] 1 Unsuitable machinery; injury of employe; liability 2 superintend -master not fellow-servant. [602] 3. Unsafe machinery evidence of defect. [600] Under the evidence and answers to the questions and the failure to answer, we are safe to say, for the purposes of this case, that the alleged negligence of the defendant in regard to this saw did not contribute to the injuries of the plaintiff. This leaves us now to examine the third ground of negligence; that is, the defects in the machine or table in which the saw was placed. The defendant urges with great force that the railroad law of 1874, relating to damages to employés of the railroad company, caused by the negligence of coémployés, is not applicable in this case. The defendant claims that the [601] rule applies only to the hazardous work of railroading; that it does not apply to that part of the defendant’s work which was carried on in its car shops; claiming further, that the fourteenth amendment to the constitution of the United States forbids any distinction as to liability in the same kind of employment ; that there should be no greater liability on the part of a railroad company for injuries to an employé, caused by the negligence of its coemployés while manufacturing cars, than there should be in the same business if it was carried on by a company not engaged in railroading, and cites: C. R. I. & P. Rly. Co. v. Deppe, 36 Iowa, 52; Santa Clara Co. v. Southern Pac. Rly. Co., 118 U. S. 394; Phila. Fire Association v. New York, 119 id. 120. We think it is unnecessary to discuss this matter, under the evidence in this case. If there is any negligence shown in this case upon which the plaintiff may recover, it is about the form or machine in which the saw was placed that cut off the hand of plaintiff. It was the duty of the defendant to provide its employés with machinery and appliances for the service required, suitable for its efficient and reasonably safe performance, and if it failed in that respect, it was liable to its servants as it would be to a stranger. This defendant had assigned to Mr. Cook and his assistant, Mr. Young, the duty of inspecting the machinery and providing new when necessary, and seeing to it that such machinery was kept in a suitable condition. While g0 engage about famishing and repairing the tools and machines in the car shop, we believe they were standing in the place of principal to this plaintiff, rather than his fellow-servants. (St. L. & S. F. Rly. Co. v. Weaver, 35 Kas. 412; A. T. & S. F. Rld. Co. v. Moore, 29 id. 632; K. P. Rly. Co. v. Little, 19 id. 267; C. & M. Rld. Co. v. Ross, 112 U. S. 377; Brabbits v. C. & N. W. Rly. Co., 38 Wis. 289.) As shown by the testimony, Mr. Young had known of the defects of this machine or table for some time, and had repeatedly repaired or fixed it. The plaintiff had complained of the defects only a day or two before the accident occurred, and Mr. Young [602] had attempted to repair it, but had not done so substantially, as is shown by the findings of the jury. It is however claimed by defendant, that the plaintiff knew as much about this machine as the defendant, especially as Mr. Young, the agent of the defendant, and that because he kept on at work at the machine after he knew of such defects, he was guilty of contributory negligence, and therefore could not recover. We think that the testimony does not support this contention. Mr. Young promised the plaintiff Saturday night that he would repair this machine; he did repair it partially, and told plaintiff Monday morning that it was repaired and all right. Plaintiff had the right to rely upon the statement of Mr. Young, and to proceed with his work under such statement. It did work all right with a small saw in light timber at first, Monday morning, under plaintiff’s hands. The first notice that plaintiff’ had of its vibrations or wabbling Monday morning, was when he commenced sawing the block upon which his hand was injured. Some party whom the evidence fails to disclose, went to the machine and did some sawing in the plaintiff’s absence. Whether during the sawing by this unknown party the mandrel became loosened or the machine unsteady, we can only surmise; when plaintiff left it it seemed to be steady and firm, and as soon as he returned and commenced to saw with it it vibrated. But this conclusion can be safely drawn from all the testimony, and the findings of fact of the jury, that the repairs made by Mr. Young on Saturday night were either not thorough or substantial, or the machine was in such a condition that if the tightening of the screws had been thoroughly done, such repairs did not materially remedy the defects complained of by plaintiff. [603] 4. Repair of machine; evidence defect. [602] It further appears in evidence that some time after the plaintiff had left the shop, something was attached or affixed to the machine to make it steady. It is in evidence that Mr. Wilcox, who took the machine or table some time after plaintiff was injured,, complained that the saw “sawed all over the timber,” and these additions or repairs, as the jury found, [603] were made at the suggestion of Mr. Wilcox. The defendant claims that the admission of such testimony was error, and in this connection complains of the instructions given by the court in reference to such repairs. We will here state that if the evidence was properly admitted, the form of an instruction given by the court covering this testimony was certainly correct. We shall not here discuss the question of whether evidence showing that repairs have been made upon a machine at which an accident has happened, shortly after it occurred, is competent to show that such machine was unsafe at the time of the accident. This court has examined and , . discussed this matter, and it appears to be the settled law of the state to admit such evidence. (A. T. & S. F. Rld. Co. v. Retford, 18 Kas. 245; City of Emporia v. Schmidling, 33 id. 485; St. L. & S. F. Rly. Co. v. Weaver, 35 id. 412; City of Abilene v. Hendricks, 36 id. 196.) We therefore believe the testimony was admissible to establish the fact of the defect in the machine at the time of the injury. The further question now arises, and one of considerable difficulty in determining, whether this defective machine was the cause of the injury to the plaintiff. We call attention to the findings, and to the general verdict for the plaintiff. It will be remembered that all these special findings were submitted at the request of the defendant, and none of them are in conflict with the general verdict, and many of them tend to sustain and uphold it; and further, whether this injury of the plaintiff was an accident, or the result of the defective condition of defendant’s machine, was submitted to the jury; by their verdict we may safely infer that they found it was caused by the negligence of the defendant, rather than by an accident. There is testimony to sustain the verdict, and we do not feel at liberty to disturb it. From the evidence, we believe the jury were authorized to find that this injury was the result of the negligence of the defendant in failing to furnish a proper machine for plaintiff to work upon. [604] The defendant also complains of a part of the court’s instruction number five, which reads as follows: “ . . . And it is the master’s or employer’s duty to maintain such supervision and care respecting all tools, machinery and' appliances used by his servants or employés as may be necessary to continue them in safe condition for use; and if he fails to do so he is liable for injuries arising from his neglect.” It contends that the word “safe” in the instruction should have been qualified by “reasonably,” or some word or phrase showing that it was defendant’s duty to have its tools and machinery in an adequately safe condition, and says that when the word “safe” was used in the connection it is in this instruction, without any limitation or qualification, it would make the defendant an absolute guarantor of the safety of its machinery. It is admitted that the rule is correctly laid down in other parts of the instructions of the court, and in passing we wish to say that it is very fully, plainly and clearly stated, with the exception of this one portion of the instruction. The proper qualifying word was evidently inadvertently omitted by the court. The sentence immediately preceding this instruction is: “ . . . And the master or employer must exercise reasonable and proper vigilance to see that the machinery employed is in proper condition for the purposes for which it is being used; and it is the master’s and employer’s duty,” etc., etc. And in the seventh instruction: “You are to determine from the evidence the facts respecting the condition of the saw and table and appliances constituting the machine at which the plaintiff was engaged when hurt, whether the same or either was in good condition and reasonably safe, or whether either was out of repair, defective, or dangerous.” [605] 5. Masters duty as to machinery; instruction, not material error. [604] The defendant contends, however, and with reason, that where the law is given properly in an instruction, and in another place improperly, it may fairly be presumed that the jury were misled by that portion of the instruction which er [605] roneously stated the law. While such is the rule, yet we would hesitate to carry it to the extent to apply it to the instructions of the court, when the instructions requested by the parties are all refused, and the charge to the jury is given as a whole, connectedly, and almost in the immediate connection and within the same subdivision of the instruction the court lays down the rule plainly and correctly. The duty of the defendant is so plainly given elsewhere that we should hesitate to decide the omission of the qualifying word in this instance would be error sufficient to require a reversal and a retrial of the case. In this action, under the findings, such instruction could not have materially prejudiced the defendant, as the jury found this machine defective and out of repair. This action was evidently not tried on the theory that this machine was safe and perfect. Finding number sixteen, submitted at the request of defendant, asks whether the plaintiff noticed any defect in the machine prior to the time of his temporary absence from the same; and immediately following, “When did plaintiff first notice on Monday that the machine was defective, or not working properly, if at all?” The main contention in this case is not whether the machine was safe, but, being defective, whether the plaintiff was guilty of contributory negligence in using it, and especially whether its defects caused the injuries plaintiff sustained. It is reasonable to infer from the testimony and findings that the machine was defective, out of repair, and unsafe. The defendant asked, and the court refused to instruct the jury, that— “ Where the danger of using defective machinery is so great that a man of ordinary prudence would not continue to use it, if a servant continues to use such machinery, or instrument, even after an express promise of the master, he would still be guilty of contributory negligence, and could not recover.” This instruction could not apply to the defective machine or form which held the saw. Plaintiff did not continue to use the same because of any promise of the master to repair [606] it, but did go to work at it upon the day of the accident, because he was told that it had been repaired since he last used it. He then had a right to assume that all repairs necessary to remedy the defects complained of had been made. We believe no material error was committed in the trial of this action, and therefore recommend that the judgment of the court below be affirmed. By the Court: It is so ordered. All the Justices concurring.