Cumberland & Pennsylvania Rail Road v. State ex rel. Moran

Alvey, J., delivered the opinion of the Court. This action was brought by the father to recover for the death of his son caused by the explosion of a locomotive engine on the road of the defendant, while the son was employed as fireman on such engine. The objection to the plaintiff’s right to recover is mainly founded in the supposed want of evidence to establish the existence of negligence on the part of the defendant, in providing the engine, and in the employment of workmen to superintend and keep such engine in proper repair. — 291 — We shall not undertake to recapitulate the evidence, nor to show what weight was due to any particular part of it; our power in this respect being simply to ascertain whether there was evidence legally sufficient upon which the Court below was justified in submitting the case to the jury. To this latter tribunal belonged the power and duty of passing upon the credit of witnesses, and of comparing and weighing the evidence introduced by the respective parties, and deducing therefrom conclusions as to the facts put in issue by the pleadings. With those conclusions we have nothing to do, provided there was some evidence legally sufficient for the consideration of the jury in determining the questions raised. The power was with the Court below to grant a new trial, and if the verdict was against the decided weight of evidence, as has been argued by the counsel for the defendant, it is but fair to presume that a new trial would have been granted if it had been applied for. Upon examination of the record, we think there was evidence to go to the jury upon the questions in controversy ; and hence the Court below committed no error in rejecting the third, sixth, seventh and eighth prayers of the defendant. It was shown, on the part of the plaintiff, that the engine Ho. 22 had been purchased in 1869, as a second-hand engine, then out of use ; and that the agents of the defendant, entrusted with the power of making the purchase, failed to ascertain the age of the engine, the use to which it had been subjected, or its condition, further than by an examination of its external appearance as then presented. It was proved that, at the time of the explosion, resulting in the death of the plaintiff’s son, the engine was in a very defective condition ; that its dome was cracked, and the plates of iron of which the boiler was composed had, from some cause, lost their tenacity and power to resist an ordinary pressure of steam ; and that the defective condition of the engine had been brought to — 292 — the knowledge and attention of the employes of the defendant, whose business it was to repair the engine. It is true, that, on. the part of the defendant, it was proved that every .precaution was taken,' and that the engine was repaired, and was supposed to be in a good, safe condition ; but, as we have said, it was for the jury to determine, upon the real state of the facts, as they found them to exist, whether there was negligence on the part of the defendant. As to the law of the case, that would seem to be well settled. When a servant engages for the performance of services for compensation, it is implied in the contract, as between himself and the employer, unless otherwise stipulated, that he takes upon himself all the natural risks and perils incident to the service. In such case, the presumption of law is, that the risks are considered in adjusting the amount of compensation for the services to be rendered. Where the nature of the service is such that, as a natural incident to that service, the servant must be exposed to the risk of injury from the negligence of other servants of the' same employer, or from the use of dangerous machinery, such risk is among the natural perils which the servant assumes upon himself, as between bimself and the master ; and consequently there is no liability of the latter to the former for injuries resulting from the negligence of other servants or co-employes in the same common employment, or the use of such machinery. If, however, the master has wrongfully and unjustifiably enhanced' the risk to which the servant is exposed beyond the natural risk of the employment, which must be jsresumed to have been in contemplation when the employment was accepted, as by knowingly or negligently employing incompetent or unfit servants, or supplying defective machinery,— in. such cases, the master may be held liable for the consequences of such negligence. Morgan vs. The Vale of Neath R. Co., 5 B. & S., 570 ; affirmed in the Ex. Ch. — 293 — L. R., 1 Q. B., 145 ; Wonder vs. Balto. & Ohio. R. Co., 32 Md., 411. Tlie rule upon this subject is well stated by Chief Justice Cockbukn, in the case of Clarke vs. Holmes, 1 H. & N., 943. He there said: “ Where a servant is employed on machinery from the use of which danger may arise, it is the duty of the master to take due care, and to use all reasonable means, to guard against and prevent any defects from which increased and unnecessary danger may occur. No doubt, when a servant enters on an employment from its nature necessarily hazardous, he accepts the service subject to the risks incidental to it; or, if ho thinks proper to accept an employment on machinery defective from its construction, or from the want of proper repair, and with knowledge of the facts enters on the service, the master cannot be held liable for injury to the servant within the scope of the danger which both the contracting parties contemplated as incidental to the employment. The rule I am laying down goes only to this, that the danger contemplated on entering into the contract, shall not be aggravated by any omission on the part of the master to keep the machinery in the condition in which, from the terms of the contract or the nature of the employment, the servant had a right to expect that it would be kept.” There are many cases maintaining the same general proposition, and the law may be regarded as settled in accordance with the opinion just quoted. In this case, the purchase of the engine was made by Slack, the general superintendent of the defendant, assisted by Jordan, the master of machinery. Now, as it was the duty of the defendant to supply, as far it could be done by the exercise of due and proper care, safe and sound machinery, the persons authorized to make the selection of and purchase the engine, must bo taken as the representatives of the defendant; and any omission or neglect committed by them, must be regarded as that of — 294 — the defendant, and for which it is liable. These agents, therefore, thus entrusted with the duty of purchasing the engine, are not to be regarded as fellow-servants of those operating it; for, in respect to the selection and purchase of the engine, they acted as agents representing the principal in regard to matters for which the latter might be liable to its servants ; and hence the defendant's sixth prayer was properly rejected by the Court below. . It does not follow, however, that because Jordan acted in a distinct and special employment, in making the selection of the engine, that therefore he was not a fellow-servant with those operating it, in his ordinary employment as master of machinery. Whether he was a fellow-servant of the deceased or not, we need not now decide; for whether he he regarded as fellow-servant, or as holding a representative position, if he was unskilful and incompetent for the position be occupied, to the knowledge of the defendant, the latter would be liable for any injury that resulted from his incompetency or want of skill. It was the duty of the defendant to keep the engine in such proper repair as not to increase the risk that was contemplated by the servant at the time he entered the service ; and if by reason of the want of skill, or from other incompetency of the master of machinery, that duty was not discharged, the defendant would be liable for the consequences. Whether Jordan was unskilful or otherwise incompetent for his position, and whether the injury sued for was in any manner the result of his unskilfulness or other incompetency, and not the want of care on the part of the deceased, were questions for the jury to determine upon all the facts of the case; and the Court below pro.perly submitted those questions to the jury. The instructions on the part of the plaintiff were loosely and defectively drawn, and if the case had to be disposed of upon those instructions, without anything more, we should be compelled to reverse the judgment, for error in — 295 — granting them. But the Court appended, a qualification to the third prayer, which applied to all that were granted on the part of the plaintiff; and when the instructions thus qualified are read in connection with the fiv'e prayers granted on the part of the defendant, we think the jury were fully and correctly instructed as to the law of the case. At any rate, there is no such error apparent as to justify the reversal of the judgment, and we must therefore affirm it. (Decided 7th March, 1876.) Judgment affirmed.