Harvey v. Texas & P. Ry. Co.

SHELBY, Circuit Judge (after stating the facts as above). 1. It is a general rule that the master must provide a reasonably safe place for the servant to work. He is not an insurer of his servant’s safety, but as to the place of labor and the instrumentalities furnished, the master is bound to exercise such care as a prudent man. would exercise under the circumstances, and he must see to it that the instrumentalities are not such as w'ill expose the servant to unnecessary danger. It follows that the master is in default as respects his servants unless the plant and appliances furnished are such as would commend themselves to a reasonably prudent man — “such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances.” The doctrine is now unquestioned that the master is obliged to furnish adequate and reasonably safe appliances and premises with c~ in which the servant is required to perform his duties. 1 Eabatt on Master and Servant, § 22a. The difficulty is not in ascertainng the principle, but in its application. The plaintiff’s son was killed in the defendant’s roundhouse by the defendant’s engine. The deceased was riding on the engine, and was crushed against one of the posts that supported the roundhouse. The post stood so close to the track that ⅛ came within about six inches of the engine cab as it passed the post. It does not appear from the record that it was necessary that the post should be so close to the track in order to serve its purpose as a part of the roundhouse. The record reveals nothing to forbid the inference that the post could have been placed at a greater distance from the track and still have served the same purpose. It has been frequently held, and seems consonant with sound reason, that negligence may be imputed to a master whenever an instrumentality, plant, or place of business furnished by him is of such a character that his servant is subjected to unnecessary dangers, or to danger greater than is reasonable or proper. 1 Labatt on Master and Servant, § 23. This doctrine has been applied in holding a railway company guilty of negligence where it allowed a switchstand to be so near a track that it extends to within “9 or 10 inches of passing cars” (Pidcock v. U. P. Ry. Co., 5 Utah, 612, 19 Pac. 191, 1 L. R. A. 131) ; where a telegraph pole was allowed to stand within 12 inches of a passing car (Hall v. U. P. Ry. Co. [C. C.] 16 Red. 744) ; where a stock chute was within 5 to 7 inches of a freight car as it passed (Keist v. Chi. G. W. Ry. Co., 110 Iowa, 32, 81 N. W. 181); where a telegraph pole stood so near the track that it cleared the passing car only 20 inches (Crandall v. N. Y., N. H. & H. R. R. Co., 19 R. I. 594, 35 Atl. 307); where a projecting rock was allowed to remain near enough the track to endanger a brakeman on a ladder at the side of a passing-car (Ga., Pac. Ry. Co. v. Davis, 92 Ala. 300, 9 South. 252, 25 Am. St. Rep. 47); where a switch at a height of 2 feet reached within 7½ inches of a passing engine. (Colf v. Chi., St. P., M. & O. Ry. Co., 87 Wis. 273, 58 N. W. 408) ; where a trestle stood within 14½ inches of a passing car (Robel v. Chi., M. & St. P. Ry. Co., 35 Minn. 84, 27 N. W. 305) ; where a switch reached within 9 inches of a passing — 393 — car (Sou. Kan. Ry. Co. v. Michaels, 57 Kan. 474, 46 Pac. 938) ; and where a switchstand was “too near the track” (Bonner v. La None, 80 Tex. 117, 15 S. W. 803). It is not only the duty oí the master to construct a safe plant or to have safe premises, but it is his duty to keep them safe. A structure too near the track may be permitted to stand for years without attracting- attention until some unfortunate accident occurs. But this does not relieve the railroad company of the charge of negligence In so constructing the road, or in permitting it to remain in a condition dangerous to the safety of the servant. Wood v. L. & N. R. R. Co. (C. C.) 88 Fed. 41. If a post is unnecessarily too near the track for safety, it should be moved. The fact that it is a part of a permanent structure may add to the expense of the change, but the question of cost is insignificant “when weighed in the balance against peril to human life.” L. & N. R. R. Co. v. Hall, 91 Ala. 112, 123, 8 South. 371, 375, 24 Am. St. Rep. 863. See, also, C., O. & G. R. R. Co. v. McDade, 191 U. S. 64, 66, 24 Sup. Ct. 24, 48 L. Ed. 96. Waiving other questions for consideration later, we are of opinion that the case could not properly be taken from the jury on the ground that there was no evidence showing, or from which the jury might infer, that the defendant company was negligent in permitting the post to stand so near the track. 2. In the absence of a statute changing the rule at common law, it is implied in the contract of hire that the servant risks the dangers which ordinarily attend or are incident to the business in which he voluntarily engages for compensation. But in affirming this doctrine, the Supreme Court has said: “It is equally implied in the same contract that the master shall supply the physical means and agencies for the conduct of his business. It is also implied, and public policy requires, that in selecting such means he shall not be wanting in proper care. His negligence in that regard is not a hazard usually or necessarily attendant upon the business. Nor is it one which the servant, in legal contemplation, is presumed to risk, for the obvious reason that the servant who is to use the instrumentalities provided by the master has, ordinarily, no connection with their purchase in the first instance, or with their preservation or maintenance in suitable condition after they have been supplied by the master.” Hough v. Railway Co., 100 U. S. 213, 217, 25 L. Ed. 612. It follows that a risk which the master has negligently created by doing or permitting something to be done, or by omitting some precaution which, in the exercise of ordinary care, ought to have been taken, cannot be regarded as one of the ordinary risks of the employment which the servant, as matter of law, is presumed to have assumed. 1 Rahatt on Master and Servant, § 270; Ford v. Fitchburg R. R. Co., 110 Mass. 240, 14 Am. Rep. 598. And this doctrine has been applied to cases where permanent objects were perq^+ted to stand needlessly and dangerously near to a railroad track. Murphy v. Wabash R. R. Co., 115 Mo. 111, 125, 21 S. W. 862; Pikesville, etc., R. R. Co. v. Russell, 88 Md. 563, 42 Atl. 214. But we need not examine this defense further as a question at common, law, nor consider the effect of deceased’s knowledge or want of knowledge of the defect, for there is a statute of the state of Texas — 394 — which is applicable on this point. Bor convenience of reference, it is copied in the margin.1 The effect of this statute is that, if it he found that the death of the deceased was caused by the wrong- or negligence of the defendant, and if the defendant knew of the defect and danger; the plea that the deceased had assumed the risk could not prevail; nor could such plea prevail if the facts were such that “a person of ordinary care would have continued in the service with the knowledge of the defect and danger.” Even if the facts were such that at common law the deceased would have been held to have assumed the risk, this statute, on the evidence in the record, would forbid the trial court to instruct the jury peremptorily to find for the defendant on the plea of assumption of risk. 3. We come now to the question of contributory negligence. There are many cases in the state courts and the lower federal courts which show reluctance in submitting controverted facts, or facts from which different inferences may be drawn, to a jury when the action involves questions of negligence and contributory negligence in a suit by a servant against the master growing out of personal injuries. Rabatt says that: ■ “Tlie American courts * * * have gone to such extreme lengths in controlling- and. setting aside verdicts that it seems to be often difficult, if not impossible, to acquit them of ignoring altogether the true boundary line between their own functions and those of juries.” 1 Labatt on Master and Servant, § 380. Beven shows that there was the same tendency in the lower courts in England, caused, he suggests, by the fact that some judges were “impressed with the frequently unjust decisions of juries in favor of injured people against wealthy corporations.” 1 Beven on Negli — 395 — gence, 148. But the House of Lords in Rngland, and the Supreme Court in this country, have endeavored to correct this tendency, and leave indicated that these cases, like others with disputed facts or facts subject to different in Terences, should be submitted to the jury. 1 Beven on Negligence, 119, and cases ¡here cited; Jones v. E. T. V. & G. R. R. Co., 128 U. S. 443, 9 Sup. Ct. 118, 33 L. Ed. 478. Tt was the duty of the enginemen, or hostlers, to move the engines in and out of the roundhouse. Harvey, the deceased, was a hostler’s helper. It was his duty to help “coal” the engine at the coal chute, and to help the hostlers iti moving the engines. He got on the engine in the roundhouse, and was with I). George, who was also a hostler’s helper. Harvey and George sat down in the cab window, with their faces toward the inside and their backs toward the outside. Sitting this way, their hips protruded from the window. The engine was moved backward very slowly, and was to be backed only a short distance. His conduct is not to be measured by rules applicable to fast travel on an ordinary train. Denver & B. P. R. T. Co. v. Dwyer, 20 Colo. 133, 136, 36 Pac. 1106. George was sitting beside the deceased, but uearer the rear end of the cab. As the engine backed, George passed the post first and in safety, but Harvey was caught between it and the cab window, and killed. Mingus, the roundhouse foreman, measured the distance from the window to the post, and gave the memorandum made by him at the time to the master mechanic. This memorandum was not produced, but Mingus said that the distance of the post from the window was “somewhere between 6 and 1 inches.” The windows were at times used as places through which to receive signals given by defendant’s servants to the hostler moving the engine. To receive signals, it was often necessary for the one receiving them to protrude somewhat beyond the side of the cab. The most critical mind finds nothing in the conduct of the deceased to criticise as reckless or imprudent or negligent, unless it be the fact that he sat in tlie window. George also sat in the window and passed the post in safety, and one would hesitate to say that all fair-minded men would hold that his act showed a want of ordinary care. The record does not show the width of the window sill, nor does it show the width of the engine, nor how much wider it was than the other engines generally in use there. It is shown that the post that struck Harvey stood nearer to the track than other posts to other tracks in the roundhouse, but it is not shown exactly how much nearer. The memorandum of the measurement not being produced, it is not certainly shown how close the post in question stood to the track." In this condition of the proof, it is a matter of inference as to what extent Harvey’s person protruded beyond the line of the cab. It is only certain that he sat in the window and was struck by the post. Does the fact that the deceased sat. in the window, in view of all the other evidence, show a want of ordinary care? Was the act so dearly significant of negligence that, taken with all the evidence, no other inference could be reasonably drawn from it? If it be assumed that the deceased knew the proximity' of the post and the danger his position put him in, no one could deny that his action was — 396 — reckless; but to assume that he had knowledge of the peril caused by the post and the breadth of the cab would be to ignore the instinct of a man to protect his own life, and also to ignore his right to assume that the road was so constructed as to be reasonably safe to servants who gave or received signals from the window. Can it be that all reasonable men would infer from the evidence that the deceased had knowledge of the facts and the danger, and, with such knowledge, assumed the position of peril? Unless he is chargeable with knowledge of the danger, he is not chargeable with negligence. Contributory negligence is "predicable only where the servant understood the conditions and the resulting dangers”; and the learned author adds, “the case is always for the jury if it is not a necessary deduction from the evidence that he did understand those conditions and those dangers.” 1 Rabatt on Master and Servant, § 330. Riding on cars, and the position, whether standing or sitting, of the servant or passenger so riding, relates to conduct in the ordinary affairs of life, and, when the prudence or recklessness of such conduct is in question, it is a* matter of ordinary reasoning which may be properly and justly left to the jury. 1 Beven on Negligence, 149. To a judge who may not have had experience from observation of the ordinary conduct of young workmen riding on engines, the position taken by the deceased may seem not only wanting in dignity, but in ordinary prudence, while to a jury of 12 men coming from different walks in life, probably familiar from observation or experience with the ordinary habits and manners of men under the circumstances involved, the act of the deceased in taking his seat in the window of the cab, considered in the light of all the evidence, might not appear necessarily imprudent nor wanting in ordinary care. In analogous cases there are many opinions and expressions of courts of high authority tending to. support our conclusion that in a case like this the question of contributory negligence is for the jury. We refer briefly to a few of them. In Coughlan v. Cambridge, 166 Mass. 268, 44 N. E. 218, the plaintiff, who sued for personal injuries, got on the car, and, the floor of the car being wet, he sat on the edge of the car, with his feet inside, holding on with both hands, until thrown off and injured in. consequence of the car’s passing rapidly over a switch and then coming to a sudden stop. The court, without dissent, said, “We cannot say that his manner of riding was negligent.” In Johnston v. Oregon. S. R. Ry. Co., 23 Or. 94, 31 Pac. 283, it was held that the question of contributory negligence was for the jury, where a switchman was killed while riding upon a ladder on the side of a car past a switch pole but 20 inches from the wall of the car and 4 feet from the track. In Brown v. Sullivan, 71 Tex. 470, 476, 10 S. W. 288, where the woman injured was standing in the door of a car, the question of her negligence was held to be for the jury. In Pennsylvania R. R. Co. v. Zink, 126 Pa. 288, 17 Atl. 614, the servant put his left foot into the iron stirrup at the right-hand side of the front end of the front car, his right foot on the bumper, and one of his arms over the side of the box of the car to hold himself on. The car; which was being pushed to a siding about 300 yards distant, was — 397 — i mining at a speed of 5 or 6 miles an hour. It was derailed, and the .-.errant was killed against a pile of lumber 20 to 40 inches away from the side of the car. The court held that the question of the decedent’s contributory negligence was for the jury. In Northern Pacific R. R. Co. v. Egeland, 163 U. S. 93, 98, 16 Sup. Ct. 975, 41 L. Ed. 82, it was held that, in jumping from a train going about four miles an hour, the servant being injured thereby, his negligence is not so obvious as to be a necessary legal conclusion, but is a question for the jury. In Washington & G. R. R. Co. v. Harmon, Adm’r, 147 U. S. 571, 580, 13 Sup. Ct. 557, 560, 37 L. Ed. 284, Mr. Chief Justice Fuller, commenting on the conduct of one who stood on the platform, “or even upon the steps,” said that it “might not be negligence in all cases, and certainly not negligence in law. ⅜ ⅜ ⅜” The case of Texas & Pacific Ry. Co. v. Johnson, 106 S. W. 773, decided by the Court of Civil Appeals of Texas, should be considered for more reasons than one. There, plaintiff’s action against the railroad company was sustained on facts very much like the case at bar. The post of the roundhouse stood within five inches of the passing engine, and the servant in charge of the engine had his head crushed between the cab and the post. He, of course, had his head out beyond the line of the side of the cab, otherwise he would not have been killed. It appears from the opinion of the court that he may have put his head out to receive and transmit a signal; “or, it may be, he only wanted to see what the machinist was doing, and thus ascertain when the foreman would probably cease the operation of the engine and turn it over to him.” The learned attorney for the defendant company contends that the Johnson Case does not apply here, because the servant in that case le&ned out of the window in the performance of a duty, but that Harvey, the servant in the case at bar, was not shown to have been looking for signals. That is true, and, while it makes a difference between the two cases, it cannot excuse the negligence, if it is proved, of the defendant, nor does it deprive the deceased of the protection of the law if he was in the exercise of ordinary care. The difference in the cases cannot properly take the one at bar from the jury, if .Harvey had the right to assume that it would be safe to lean out of the window to give or receive signals. It is not probable that he protruded from the cab as much in sitting in the window as one would protrude from it in giving or receiving signals. The same distinction and contention was pressed on the court in Kansas City, M. & B. R. R. Co. v. Burton, 97 Ala. 240, 255, 12 South. 88, 95, and the court held: It is “common knowledge that on freight trains, there being frequent occasions for the communication of signals from different parts of the train to the engine and no other practicable means to this end, it is often necessary for employes to extend their persons beyond the surface of the cars to give such signals. In view of all of this, the assurance of safety in being on the sides, or beyond the surface of such cars, which is imported thereby, the consequent idea of the absence of danger from such position which must naturally be engendered among employés, we cannot nay that an employe is negligent in extending Ms person 'beyond, the ear, even when, under the immediate circumstances it is 'not necessary for him to do so in the discharge of Ms duties, unless he knows of obstructions, or has reason to believe there are obstruc — 398 — tions, which inject an element of danger beyond the ordinary into the situation.” (Italics ours). We are of opinion that the learned trial judge was not authorized to direct a verdict for the defendant on the ground that, as a matter of law, the deceased was guilty of contributory negligence. 4. The learned counsel for the defendant contends that the deceased, at the moment of the accident, “had no duty to perform on the engine, and merely boarded it to be carried down to the coal chute, at which place his duty called him to assist in coaling the engine.” It is true' that he was hot engaged in the performance of any work at the moment he was struck. The evidence tends to prove, or, at least, the inference is permissible, that he was not only on the way to the place where he was to work, but that he was subject to orders, and was ready to help, if needed, in the moving of the engine. The evidence tends to show he was on duty. He was on his way to the coal chute about 200 yards distant, where he was to help in putting coal on the engine, and had mounted the engine, as was usual, or, at least, as was not unusual, in the roundhouse, to go on it to the coal chute. We are of opinion that the servant should be deemed in the master’s service whenever present to perform his duty and subject to orders, although at the given moment he may not be engaged in the actual performance of any work. East Line & Red River R. R. Co. v. Scott, 71 Tex. 703, 10 S. W. 298, 10 Am. St. Rep. 804; St. L., A. & T. Ry. Co. v. Welch, 72 Tex. 298, 10 S. W. 529, 2 L. R. A. 839. “They also serve who only stand and wait.” The judgment is reversed, and the cause remanded for a new trial. Footnotes [1] Be it enacted by the Legislature of the State of Texas: Section 1. That in any suit against a person, corporation or receiver operating a railroad or street railway for damages for the death or personal injury of an employe or servant, caused by the wrong or negligence of such person, corporation or receiver, that the plea of assumed risk of the deceased or injured employe where the ground of the plea is knowledge or means of knowledge of the defect and danger which caused the injury or death shall not be available in the following eases: First. Where such employe had an opportunity before being injured or killed to inform the employer or a superior entrusted by the employer with the authority to remedy or cause to be remedied the defect, and does notify or cause to be notified the employer or superior thereof within a reasonable time, provided it shall not be necessary to give such information where the employer or such superior thereof already knows of the defect. Second. Where a person of ordinary care would have continued in the service with the knowledge of the defect and danger, and in such case it shall not be necessary that the 'servant or employe give notice of the defect as provided in subdivision 1 hereof. Sec. 2. The fact that there is now no adequate law protecting employes on railroads in their employment from damages in operating defective machinery creates an emergency and an imperative public necessity that the constitutional rule which requires bills to be read on three several days in each house be suspended, and said rule is hereby suspended, and this act.shall take effect and bo in force from and after its passage, and it is so enacted. Approved April 24, 1005. Gen. Laws Tex. 1005, p. 8S6, c. 163.