Buckner v. Richmond & Danville Railroad

Campbell, Special J., delivered the opinion of the court. The averment of the declaration that the hand-car furnished him by his employer was defective in having a lever that made its operation dangerous to persons on it, and a broken wheel which led to serious consequences,’ and that these defects were the direct and immediate cause of the injury to the plaintiff, of which he complains, makes it sufficient to withstand a demurrer, although the declaration does not negative contributory [878] negligence by the plaintiff, the rule in this state being that this defense is to be made by the defendant, unless it arises out of the case made by the plaintiff. The declaration shows that the plaintiff had knowledge of the defects in the hand-car, but the constitution of 1890 declares that knowledge by an employe of the defective or unsafe character or condition of any machinery shall be no defense, etc., § 193.. The effect of this is not to destroy the defense of contributory negligence by a railroad company, but merely to abrogate the previously existing rule that knowledge by an employe of the defective or unsafe character or condition of the machinery, ways or appliances, shall not, of itself, bar a recovery. The law was that knowledge by an employe of defective appliances which he voluntarily used, precluded his recovery for an injury thus received. The constitution destroys that rule, and the mere fact that the employe knew of the defect, is not a bar to recovery; but knowledge by an employe of defects is still an element or factor, and a very important one, in determining whether, with the knowledge he had, he used that degree of caution required in his situation with reference to the appliances causing his injury. The constitution did not have the effect to free employes of railroad companies from the exercise of ordinary caution and prudence. It does not license recklessness or carelessness by them, and give them a claim to compensation for injuries thus suffered. They, like others not employes, must not be guilty of contributory negligence, if they would secure a right of action for injuries. The fact of knowledge of defects shall not be, as heretofore, a defense, but the same rule that applies to others applies to them. They must use the degree of caution applicable to the situation, for the absence of this is negligence, and, if it contributed to. the injury, no recovery can be had by an employe any more than by one not an employe. It was not the purpose of the makers of the constitution to place employes on a more favorable, footing as to this than others, but simply to free them from [879] the bar before held, to arise from the fact of knowledge of defective conditions. It is not a defense, but it is a fact or circumstance fon consideration among others in order to determine the presence or absence of contributory negligence, which is yet a defense, as it was before, but is not to be made out against an employe by the mere fact of his knowledge. The case of Welsh v. Railway Co., 70 Miss., 20, is not inconsistent with this view, as a careful reading of the opinion will show. That case shows that the circuit court had instructed peremptorily for the defendant because the plaintiff had used a defective appliance after he had notice of its condition. He testified that, although he had known of it, he had reason to believe, and did believe,, that the defect had been remedied. It was in reference to the defense of contributory negligence consisting in mere knowledge of defects that the language of the opinion was employed, and correctly, but it was not intended to announce that employes are freed by the constitution from the obligations of common prudence and caution to avoid injury applicable to all alike. The opinion should be read with reference to the case being dealt with, and it will be found correct as applied to it, but there is danger that the court may be supposed to have held what it did not intend to decide, and, because of' this, and that the matter is presented in the case now before us, we have given expression to the foregoing views. The declaration shows a cause of action against the Richmond & Danville Railroad Company, and, as to it, the demurrer should have been overruled. The plaintiff was its seivant, and the question presented by the demurrer of the Georgia Pacific Company is, whether the servant of its lessee has a right of action against it for injuries he received from the use of defective or unsafe machinery it had leased. The courts are divided on the question as to the effect of a lease by a railroad company on the right of persons suffering wrong by the lessee to recover of the lessor. . All, perhaps, agree that an unauthorized lease leaves [880] liability as though a lease had not been made. Where there is legal authority for the lease, and express immunity granted to the lessor by the act permitting the lease, there is no liability of the lessor; but where a lease is authorized, and no provision for exemption is contained in the authorization, some courts hold that the lessor continues liable, as before, and some deny continued liability on the part of the lessor. The question of the lessor’s liability has been made-to depend on circumstances as to the condition of the road and appliances leased, when leased, the terms of the lease, etc. There is great diversity of view. We are not called on by this case to take position amid the conflicting opinions. The precise question here presented is as to the right of a servant of the lessee to recover of the lessor for a cause of action he has against the lessee, his employer, for an injury received by the use of defective machinery leased. Pretermitting any expression of opinion not called for by this case, we have no hesitation to say that the servant of the lessee must recover, if at all, from his master and not another. “To his own master he standeth or falleth. ” To him he is answerable, and to him he must look for redress for all injuries sustained in his service. Whatever be the rights of strangers to the relation of master and servant to look to the lessor in any case for wrongs of the lessee, there is no principle or policy to sustain the claim of an employe to look elsewhere than to his employer. And so it has been ruled in the only cases we know of in which the precise question has been presented. Virginia Railway Co. v. Washington, 86 Va., 629 (43 Am. & Eng. R. R. Cas., 688); Railroad v. Culberson, 72 Tex., 375 (38 Am. & Eng. R. R. Cas., 225). As we hold the lessor not answerable to the plaintiff in this action, it is unnecessary to notice any other question. The judgment is correct so far as relates to the Georgia Pacific Railway Company, but the demurrer of the Richmond & Danville Company should be overruled. Reversed mid remanded, to be proceeded with in accordance with this opinion. [881] Judge Woods being disqualified by reason of sickness, J. A. P. Campbell, Esq., a member of the bar, was commissioned special judge, and sat in Ms stead.