It is the duty of a railroad company to use due care to provide
a reasonably safe place and safe appliances for the use of workmen
in its employ. It is obliged to use the same degree of care to
provide properly constructed roadbed, structures, and track to be
used in the operation of the road.
The servant has a right to assume that the master has used due
diligence in providing suitable appliances for the operation of his
business, and does not assume the risk of the employer's negligence
in making such provision.
While an employee who continues without objection in his
master's employ with knowledge of a defective apparatus assumes the
hazard incident to the situation, unless the evidence plainly shows
the assumption of the risk, it is a question properly left to the
jury.
The facts appear in the opinion of the court.
Page 191 U. S. 65
MR. JUSTICE DAY delivered the opinion of the Court.
This was an action to recover for the death by wrongful act of
John I. McDade, an employee of the Choctaw, Oklahoma & Gulf
Railroad Company. The plaintiff recovered a judgment in the circuit
court, which was affirmed in the court of appeals. 112 F. 888.
There was evidence tending to show that McDade, a brakeman in
the employ of the company, was killed on the night of August 19,
1900, while engaged in the discharge of his duties as head brakeman
on a car in one of the company's trains. McDade was at his post of
duty, and, when last seen, was transmitting a signal from the
conductor to the engineer to run past the station of Goodwin,
Arkansas, which the train was then approaching. The train passed
Goodwin at a rate of from twenty and twenty-five miles an hour. At
Goodwin, there was a water tank, having attached thereto an iron
spout which, when not in use, hung at an angle from the side of the
tank. Shortly after passing Goodwin, McDade was missed from the
train, and, upon search being instituted, his lantern was found
near the place on the car where he was at the time of giving the
signal. His body was found at a distance of about six hundred and
seventy-five feet beyond the Goodwin tank. There was also testimony
tending to show, from the location of the waterspout and the
injuries upon the head and person of McDade, that he was killed as
a result of being struck by the overhanging spout. The car upon
which McDade was engaged at the time of the injury was a furniture
car, wider and higher than the average car and of such size as to
make it highly dangerous to be on top of it at the place it was
necessary to be when giving signals in view of the fact that the
spout cleared the car by less than the height of a man above the
car when in position to perform the duties required of him.
There was no eyewitness as to the exact manner of the injury to
McDade, and it is urged that the court below should have taken the
case from the jury because of the lack of testimony
Page 191 U. S. 66
upon this point. It was left to the jury under proper
instructions to find whether McDade came to his death in the manner
stated in the declaration, and the court distinctly charged that,
unless satisfied of this, there could be no verdict against the
railroad company. While the evidence was circumstantial, it was
ample, in our opinion, to warrant the submission of this question
to the jury under the instructions given. Furniture cars like the
one on which McDade was riding were received and transported over
this road. There is testimony tending to show that a proper
construction of the tank and appliances required the spout to hang
vertically when not in use, and other testimony to the effect that,
when hung in this manner, it would be difficult, if not impossible,
for the fireman to pull down the spout in taking water, and that to
hang it at an angle is at least a more convenient method of
adjustment. Be this as it may, the testimony makes it clear that,
in the proper construction of this appliance, there is no necessity
of bringing it so near to the car as to endanger brakemen working
thereon. Whether hung at an angle or not, it can be so constructed
as to leave such space between it and the top of the car as to make
it entirely safe for brakemen in passing. The testimony makes it
equally clear that, when on the furniture car, McDade, sitting at
his post, would be likely to be struck by the spout in passing. It
is undoubtedly true that many duties required of employees in the
transaction of the business to be carried on by a railroad company
are necessarily attended with danger, and can only be prosecuted by
means which are hazardous and dangerous to those who see fit to
enter into such employment. Where no necessity exists, as in the
present case, for the use of dangerous appliances, and where it is
a matter requiring only due skill and care to make the appliances
safe, there is no reason why an employee should be subjected to
dangers wholly unnecessary to the proper operation of the business
of the employer.
Kelleher v. Miluaukee & Northern R.
Co., 80 Wis. 584;
Georgia Pacific Railway Co. v.
Davis, 62 Ala. 300; 1 Shearman
Page 191 U. S. 67
& Redfield on Negligence, 5th edition, section 201, and
cases cited.
We agree with the circuit court of appeals in affirming the
instructions upon this subject given by Judge Hammond to the jury,
in which he said:
"It is so simple a task, one so devoid of all exigencies of
expense, necessity, or convenience, so free of any consideration of
skill, except that of the foot rule, and so entirely destitute of
any element of choice or selection, that not to make such a
construction safe for the brakemen on the trains is a conviction of
negligence."
It is the duty of a railroad company to use due care to provide
a reasonably safe place and safe appliances for the use of workmen
in its employ. It is obliged to use ordinary care to provide
properly constructed roadbed, structures, and track to be used in
the operation of the road.
Union Pacific Ry. Co. v.
O'Brien, 161 U. S. 451. The
spout might readily have been so constructed and hung as to be
safe. As it was maintained, it was a constant menace to the lives
and limbs of employees whose duties required them, by night and
day, to pass the structure. It is a case where the dangerous
structure is not justified by the necessity of the situation, and
we agree with the judgments in the courts below that its
maintenance under the circumstances was negligence upon the part of
the railroad company. The court, having left to the jury to find
the fact as to whether McDade was killed by the obstruction, did
not err in giving instruction that the negligent manner in which
the waterspout was maintained was, of itself, a conviction of
negligence.
The court left to the jury the question of the assumption of
risk upon the part of McDade, with instructions which did not
permit of recovery if he either knew of the danger of collision
with the waterspout, or, by the observance of ordinary care upon
his part, ought to have known of it. The servant assumes the risk
of dangers incident to the business of the master, but not of the
latter's negligence.
Hough v. Railway Co., 100 U.
S. 213;
Wabash R. Co. v. McDaniels,
107 U. S. 454;
Page 191 U. S. 68
N. P. R. Co. v. Herbert, 116 U.
S. 642;
N. P. R. Co. v. Babcock, 154 U.
S. 190. The question of assumption of risk is quite
apart from that of contributory negligence. The servant has the
right to assume that the master has used due diligence to provide
suitable appliances in the operation of his business, and he does
not assume the risk of the employer's negligence in performing such
duties. The employee is not obliged to pass judgment upon the
employer's methods of transacting his business, but may assume that
reasonable care will be used in furnishing the appliances necessary
for its operation. This rule is subject to the exception that,
where a defect is known to the employee or is so patent as to be
readily observed by him, he cannot continue to use the defective
apparatus in the face of knowledge and without objection without
assuming the hazard incident to such a situation. In other words,
if he knows of a defect or it is so plainly observable that he may
be presumed to know of it, and continues in the master's employ
without objection, he is taken to have made his election to
continue in the employ of the master notwithstanding the defect,
and, in such case, cannot recover. The charge of the court upon the
assumption of risk was more favorable to the plaintiff in error
than the law required, as it exonerated the railroad company from
fault if, in the exercise of ordinary care, McDade might have
discovered the danger. Upon this question, the true test is not in
the exercise of care to discover dangers, but whether the defect is
known or plainly observable by the employee.
Texas &
Pacific Ry. Co. v. Archibald, 170 U.
S. 665.
There was testimony tending to show that McDade had been over
the part of the road where the Goodwin tank was situated only a few
times, and that part of the trips were made in the night season,
and also that the furniture cars were of unusual height as compared
with those generally used in the transaction of the business of the
company. Neither the assumption of risk nor the contributory
negligence of the plaintiff below was so plainly evident as to
require the jury to be instructed
Page 191 U. S. 69
to find against the plaintiff, but, under the facts disclosed,
these matters were properly left to the determination of the
jury.
Numerous exceptions were taken to the refusal of the court to
charge in certain respects, but, as the charge given was proper and
pertinent to the facts and sufficiently comprehensive, it was not
error to refuse such requests. The assignments of error as to the
admission of testimony were nearly all based upon exceptions
general in their character and, under the well settled rule, not
reviewable here.
Burton v.
Driggs, 20 Wall. 125;
Noonan v. Caledonia
Mining Company, 121 U. S. 400;
District of Columbia v. Woodbury, 136
U. S. 462.
The one of most gravity is as to the admission of testimony to
show that, after the accident, the waterspout at Goodwin was
reconstructed so as to be placed at a point farther removed from
passing trains. Evidence having been introduced by the railroad
company to show by measurements that the waterspout did not
constitute danger to brakemen on passing trains, the court
permitted plaintiff below to show that changes had been made which
might have an effect upon the subsequent measurements offered in
evidence. The jury were told that nothing could be inferred against
the defendant company by reason of the fact that, after the
accident, such reconstruction of the spout was made, and that such
change had no other bearing upon the issues of the case than to
enable the jury to ascertain the value of the measurements offered
in evidence.
We find no error in the judgment of the circuit court of
appeals, and it is
Affirmed.