An employer of labor in connection with machinery is not bound
to insure the absolute safety of the machinery or mechanical
appliances which he provides for the use of his employees, nor is
he bound to supply for their use the best and safest or newest of
such appliances, but he is bound to use all reasonable care and
prudence for the safety of those in his
Page 135 U. S. 555
service by providing them with machinery reasonably safe and
suitable for use, and if he fails in this duty, he is responsible
to them for any injury which may happen to them through a defect of
machinery which was or ought to have been known to him and which
was not known to the employees; but if an employee who is injured
by reason of a defect in such machinery knew of the defect which
caused it and remained in the service of his employer and continued
to use the defective machinery without giving notice thereof to
him, he must be deemed to have assumed the risk of all danger
reasonably to be apprehended from such use.
When a person employed by another to labor in connection with
machinery is wanting in such reasonable care and prudence as would
have prevented the happening of an accident and is injured by the
machinery, he is guilty of contributory negligence, and his
employer is thereby absolved from responsibility for the injury
although it was occasioned by defect in the machinery and through
the negligence of the employer.
The question of contributory negligence is, as a general rule,
one for the jury under proper instructions by the court, especially
where the facts are in dispute and the evidence in relation to them
is such that fair-minded men may draw different conclusions from
it.
A court may refuse to give a requested instruction when it has
already given substantially the same instruction in its own
language.
This is an action on the case brought in the Supreme Court of
the District of Columbia by Lewis H. McDade against the Washington
and Georgetown Railroad Company, a District corporation, to recover
damages for personal injuries sustained while employed by the
company as a blacksmith in its shops in Georgetown. The injury
consisted in the loss of his left arm, which was caught in a belt
used to propel a part of the machinery in the company's shop, and
thereby so broken and mangled that it had to be amputated near the
shoulder immediately after the accident.
The declaration alleges that the defendant is a corporation, and
owns and operates a horse railway in the City of Washington and
District of Columbia, and certain machinery for the construction
and repair of the tracks, cars, and other appliances and implements
used in connection therewith; that on the 5th of February, 1883,
the plaintiff was in the employ of the defendant, as a blacksmith,
and was required by defendant from time to time to put and place a
certain belt upon a pulley attached to a countershaft, when the
same was in motion, to communicate power and motion from the
machinery
Page 135 U. S. 556
in the machine shop of the defendant to the fan and drill-press
used by plaintiff in the blacksmith shop; that the said machinery
and appliances were defective and dangerous in that there was no
loose pulley and lever or shifter for the purpose of putting the
belt on and removing it from the first-named pulley, but that
plaintiff had no notice or knowledge thereof, being unused to and
unskilled in such machinery and appliances; that the defendant, its
servants and agents, knew that the same were defective and
dangerous, but failed to notify the plaintiff thereof; that on the
5th of February, 1883, the plaintiff, while ignorant of such defect
and danger as aforesaid, was at the defendant's request engaged in
the act of putting said belt on the first-named pulley, and by
reason of such defect and dangerous condition of the machinery, and
without any fault or negligence on his part, was caught in or
struck by said belt with great force, and his left arm was severed
thereby, by means of which he was made very sick, sore, and lame
for a long space of time, and suffered great anguish of body and
mind, and was crippled and disabled for life from the performance
of his usual trade and labor as a blacksmith; that he was put to
great expense and trouble in trying to be healed and cured of said
would and sickness, and that he paid large sums of money for
medical attendance, medicines, and nursing, to his damage the sum
of $20,000. The defendant pleaded the general issue, and defended
mainly upon the ground that the plaintiff was guilty of such
contributory negligence as precluded a recovery for the injuries
sustained.
The case coming on for trial before the court and a jury, the
plaintiff, to maintain the issue on his part, testified in
substance as follows: he entered the service of the defendant as a
blacksmith at its shops in Georgetown on the first of May, 1881,
and continued there until the time of the accident, on February 5,
1883. When he first went there, he worked at the same forge with a
man named Eckrit, who was head blacksmith, but at a different fire,
they making and repairing the irons used in the manufacture of
street-cars. In the same
Page 135 U. S. 557
room, which was about forty feet square, at a separate forge, a
man named Morgan made horseshoe nails. Eckrit left the service of
the defendant a few months afterwards, and one Parsons was then
employed as an assistant to the plaintiff, who had been made chief
blacksmith.
The blast of air used at their forge was supplied by a fan
propelled by an engine which ran all the machinery in the shops by
means of shafts, pulleys, and belts, and was situated in an
adjoining room connected with the blacksmith shop by a door in the
partition wall. The main shaft was in the engine room. In the
blacksmith shop there was a countershaft, three and one-half to
four inches in diameter, about twelve feet from the ground and
thirty inches from the wall, to which motion was communicated by
means of a belt running on a fixed pulley attached thereto, and on
another fixed pulley on the main shaft, and passing through a small
opening in the partition wall for that purpose. The belt which
directly gave motion to the fan was about three or four inches
wide, and ran on a small fixed pulley attached to the fan, and on a
fixed pulley about thirty inches in diameter attached to the
countershaft by means of a screw projecting about an inch and a
half above the hub of the pulley. The latter pulley, when the
machinery was in motion, revolved about 180 times per minute.
Another fan in the blacksmith shop, propelled in like manner,
furnished a blast of air for the forge at which Morgan worked, and
a drill-press in the same room was propelled by means of a belt
running on a pulley affixed thereto, and on a fixed pulley on the
countershaft. Perhaps on an average once a week, the engine and a
portion of the machinery was run in the evening or at night, after
work in the blacksmith shop had ceased for the day, and the belt
used to propel the fan was then thrown off the pulley on the
countershaft, sometimes by the plaintiff, but generally by someone
else in the employ of the defendant. During the time that Eckrit
and the plaintiff were both in the employ of the defendant, Eckrit
always put the belt on when it had been taken off, except when it
was taken off for repairs, and whenever such repairs were needed,
one Moore, who kept in repair
Page 135 U. S. 558
all the belting in the shop, would take it off and put it on
again, but never at any other time. After Eckrit left, the
plaintiff was directed to take the place of Eckrit at the forge,
and all the time until the injury -- a period of sixteen to
eighteen months -- he habitually put on the belt whenever he found
it off, except when it was taken off for repairs, supposing it to
be a part of his duty. The first time it was off after Eckrit left,
he called the attention of the engineer, Mr. Kline, to the fact
that the belt was off, who said, "Can't you put it on?" to which
plaintiff replied, "I suppose so," and then put it on. Hawk, the
foreman of the shops, from whom plaintiff received his orders,
never gave him any instructions what to do, except that he should
take Eckrit's place, and both he and Saylor, the superintendent of
the company, often saw the plaintiff put the belt on, but never
gave him any instructions about it or informed him that it was
Moore's duty to put the belt on when it had been taken off, and not
to do it himself. Plaintiff knew that it was Moore's duty to repair
the belts, and put them on the first time after they had been
repaired, but never knew that it was Moore's duty to put them on at
any other time, and Moore never did put on this belt at any other
time.
He further testified that he was 53 years of age, and had been a
blacksmith since he was 17, having worked in Washington and
Baltimore, the latter city being where he had learned his trade,
but that he was ignorant of machinery, never before having been
employed in a shop where the blast of air for the forge was created
by machinery but once, and in that instance the fan was two hundred
feet off, and not in the shop and that the belt connected with the
fan in the defendant's shop was the only belt he ever put on.
In order to put the belt on the large pulley on the
countershaft, it was necessary to use a moveable ladder about
twelve feet long, placed against the partition wall. In going up
this ladder, his back might touch the shaft, and the face of the
pulley was nearer the wall than his own face; and, in placing the
belt on the pulley, he would turn his face toward the pulley. On
the morning of the accident, the plaintiff went to the shop a few
minutes before 7 o'clock to commence work,
Page 135 U. S. 559
Parsons and the engineer, Kline, both being there when he
arrived. Observing the belt off and the machinery in motion,
plaintiff ascended the ladder and attempted to put on the belt, but
it came off immediately. He then came down the ladder and went into
the engine room, saying to Kline that there was something wrong
with the belt, as it would not stay on. Kline then ascended the
ladder and attempted to put the belt on, but it immediately came
off as before. Kline then came down the ladder, and said to the
plaintiff that he would go and slow the engine, and that plaintiff
should then put on the belt. He says that he waited a sufficient
length of time, as he supposed, for Kline to reach the engine and
slow it up, and, after the pulley had slacked somewhat in its
revolutions, he again ascended the ladder, and attempted to put the
belt on, but it was thrown off toward and against him, and formed a
loop, which caught on the set-screw in the hub of the pulley, wound
around the countershaft, and drew his left arm in between the belt
and the countershaft, crushing and tearing it to such an extent
that it was necessary to amputate it near the shoulder immediately.
When his arm was caught, he screamed, and the engineer immediately
stopped the engine.
The accident occurred on a Monday morning. On the preceding
Friday or Saturday, the belt had been repaired by Moore, who placed
it on the pulley after it was repaired. It worked all right
afterwards, and was still on the pulley when plaintiff quit work on
Saturday evening.
The plaintiff further testified that he had suffered great
physical and mental pain from the accident, having been confined to
his room for six weeks, and most of that time to his bed; that his
nervous system had been shocked to such an extent that for eighteen
months thereafter he could not do any work, and that since that
time, although better and stronger, he had suffered considerably,
and was permanently disabled from working at his trade. He further
said that he never had had any experience with machinery, and he
did not know that it was any more dangerous to put a belt on a
pulley while it was in motion than it was
Page 135 U. S. 560
to strike a piece of iron with a hammer; that no one ever
informed him that it was dangerous to put a belt on a pulley while
it was in motion; that Eckrit, Moore, and Kline always put the
belts on while the machinery was in motion; that if he had known
that it was dangerous to put a belt on a pulley while it was in
motion, he would not have done so; that he had never seen anyone
put a belt on a pulley until he saw it in the defendant's shops;
that in other parts of the shops, both before and at the time of
the accident, the defendant had a loose pulley for the purpose of
shifting belts, of which fact he was ignorant until afterwards, and
that there were no loose pulleys in the blacksmith shop, and he did
not know there were such things until after the injury, having
afterwards seen one for the first time in Springman's blacksmith
shop in Washington. On cross-examination, the plaintiff testified
that
"on the occasion of his injury, when Kline left him to go the
engine room, he said he would go and slow up the engine -- not to
stop it -- and for plaintiff to put on the belt; that he stood at
the foot of the ladder for about a minute after Kline left him, and
until the speed of the machinery was somewhat slackened, and then
went up the ladder, which took him about half a minute, and
attempted to put on the belt; that when he was caught in the belt,
he screamed, and Kline came to the door of the blacksmith shop, and
then went back and stopped the engine."
Dr. Ritchie testified on behalf of the plaintiff that he
attended him when he was injured, and amputated his arm; that his
suffering was acute, and the shock so great as to cause permanent
nervous impairment and mental depression, and that the physical
injury was permanent. John T. Springman, a witness for the
plaintiff, testified that about a year and a half before that time,
having had occasion to do some very heavy work in his foundry, he
bought a large blower, and supplied the air by means of a fan
propelled by machinery; that he had placed a loose pulley at the
fan, and another on the countershaft, shaft, both next to the fixed
pulleys, shifting the belt, when necessary, onto those loose
pulleys by means of a lever near the floor; that he had never seen
such
Page 135 U. S. 561
a contrivance anywhere else, although he had been a blacksmith
twenty-five years, and that such a contrivance for shifting belts
was considered safe, while to put them on and take them off by hand
was considered dangerous.
Robert Thompson, a witness for the plaintiff, testified that he
had had a large experience in machinery and belting, having worked
for twenty-five years in planing mills and sash factories, and that
loose pulleys for placing and removing belts on and off fixed
pulleys had been in common and general use for over twenty-five
years; that they can be used wherever there is room to place them,
and are generally placed on the countershaft immediately adjoining
the fixed pulley, the fixed pulley at the machine being as wide as
both pulleys on the countershaft; that the belt is removed from one
pulley to the other by means of a lever called a "shifter," which
can be operated very easily with one hand without out any danger,
thus stopping and starting the particular part of the machine while
the rest of the machinery is in motion, and that it is dangerous to
put belts on pulleys by hand while they are in motion, and he would
not do it without the shifter, which renders such work perfectly
safe.
Smith Pettit and John B. Randolph, witnesses for the plaintiff
-- the former a machinist of 30 years' experience, and the latter
the machinist at the State, War, and Navy Department for a number
of years -- both testified substantially to the same effect as the
preceding witness in respect to the long use of loose pulleys and a
shifter for the purpose of removing belts in all well regulated
machine shops, and to the danger of putting them on in any other
manner. John W. Eckrit, who had worked with the plaintiff in the
shop at one time, as before testified to, a witness for the
plaintiff, stated that he put the belt on the pulley three or four
times after the plaintiff came there, but that no one directed him
to do so, and he did not know whether or not Hawk was aware of such
fact, and that he had put on belts before by hand.
The plaintiff thereupon rested his case, and the defendant moved
the court to instruct the jury to return a verdict in its
Page 135 U. S. 562
favor upon the aforesaid evidence, which the court declined to
do, and the defendant thereupon excepted.
The defendant then gave evidence tending to prove that the
machinery in its car shops was of the most approved character,
there being none better or more suitable to be found in the
country; that loose pulleys and a shifter were not used in
blacksmith shops like its own, but were used only when the machine
required the power to be quickly thrown off or put on, or where the
work to be done was very heavy, and the belt not easily managed by
hand; that the belt in question could be shifted very easily by
hand, without danger, by a person of ordinary intelligence who had
seen it done a few times; that there was a loose pulley on the
drill-press in the blacksmith shop; that Hawk, the foreman, a
carpenter by trade, had charge of all the men in the shops, and
gave orders and directions to all of them, being perfectly
competent to fill the position which he held, no one else having
any authority to give orders to any of the men employed in the shop
as regards the belting; that the engineer's duties were only such
as pertained to running the engine, which fact was known to the
plaintiff; that the duties of Moore extended not only to taking off
and putting on the belts when they needed repairs, but consisted in
his having general charge of the belts in the shops, putting them
on and taking them off whenever such work was necessary, which fact
was known to all the men in the shops, including the plaintiff, and
that both Morgan, who worked in the blacksmith shop, and the
predecessor of the plaintiff, always called on Moore whenever the
belt was off.
Hawk, the foreman, testified that on the Saturday preceding the
accident at about 4 o'clock in the afternoon, when work in the
blacksmith shop was about to cease, he went there, and, standing
about twenty-five feet from the plaintiff and his helper, Parsons,
since deceased, addressed them both, saying that the engine would
be run after working hours, and the belt would be thrown off, and
that Monday, when the bell rang to go to work, Moore should be
called to put the belt on. He said that he gave that order because
the belt had been repaired on the Friday preceding, but that he was
not sure
Page 135 U. S. 563
that either the plaintiff or Parsons heard him, as the machinery
was in motion and was making considerable noise, and neither made
any response. He said he was a carpenter, and had no special
knowledge of machinery; that the belt was not taken off more than
12 or 15 times while the plaintiff was there; that when the belt
was repaired on the preceding Friday, it was made a little too
short, which probably caused it to slip off when the plaintiff
attempted to put it on, and that he never gave the plaintiff any
instructions about his work at any time.
George E. Noyes, a witness for the defendant, a machinist of
experience, testified that he had never examined the machinery of
the defendant carefully, but that it seemed to him that its general
plan was good; that fast and loose pulleys are generally used where
any part of the machinery is stopped periodically, and are
sometimes, but not always, connected with forges; that it is always
dangerous to put on a belt by hand when the machinery is in motion,
and no one likes to do it, the only preventive being a loose
pulley; but that in his shop he usually had boys to put on the
belts by hand, and thought an ordinarily bright boy could learn to
do such work in a day, by being shown how a few times.
Moore gave testimony to the effect that on two occasions he was
sent for to put on the plaintiff's belt -- once by the plaintiff
and the other time by Parsons; that it was his duty to attend to
the belts generally, and that he always took the belt off and put
it on again when he repaired it, but never at any other time unless
he was sent for.
The engineer, Kline, a witness for the defendant, in describing
the manner in which the plaintiff received his injury, stated that
on the morning of the accident, after the machinery had been
running four or five minutes, the plaintiff came into the engine
room, and said, "I wish you would come and help me with my belt,"
and that, after they got into the blacksmith shop, the plaintiff
said, "How am I to get that belt back on this side of the pulley?"
He said he then ascended the ladder, and threw the belt back on the
right side, but could not put it on, and then came down the ladder,
and said
Page 135 U. S. 564
to McDade, "Hold up until I shut down." He then went into the
engine room, and shut off the steam, but the engine did not stop
immediately; the momentum being sufficient to carry the fly wheels
around 8 or 12 times before the speed was checked. In the meantime,
standing by his engine, he heard McDade scream, and went to see
what the matter was. He stated that from the time he came down the
ladder until the engine stopped was not greater than three-quarters
of a minute.
The plaintiff, on his cross-examination in rebuttal, testified
to the following effect: he did not know whether putting on the
belt was a part of his duty, but supposed it was and acted
accordingly. He again asserted that he had no idea of there being
any serious danger in putting the belt on the pulley by hand -- not
any more than in picking up a hammer from the floor. Speaking of
the accident, he said that when Kline had attempted to put the belt
on and had failed, he came down the ladder and said to him, "Go up
and put it on whilst I slow up the engine," or, "Go up the ladder,
put the belt on, and I will slow the engine." He further stated
that he did not attempt to put the belt on until the engine was
slowed -- whether it was sufficiently slowed or not he did not know
-- but that he understood the engine was to be slowed up in order
to enable him to put the belt on.
At the conclusion of the testimony, the defendant renewed its
motion for a verdict, which motion the court overruled, and an
exception was duly taken. Counsel for the defendant asked the court
to grant twenty separate prayers for instructions to the jury,
three of which the court granted in the language in which they were
presented, ten were slightly modified, and seven were denied. The
court, upon its own motion, gave one instruction. Under these
instructions, verdict and judgment were rendered for the plaintiff
for $6,195. The Supreme Court in general term affirmed that
judgment. 5 Mackey 144. Hence, this writ of error.
Page 135 U. S. 567
MR. JUSTICE LAMAR, after stating the facts as above, delivered
the opinion of the Court.
A motion was filed in this case to dismiss the writ of error on
the ground that the general term of the court below never acquired
jurisdiction of the case, and that as a consequence thereof this
Court is also without jurisdiction. In connection with the motion
to dismiss, there is also a motion to strike out the bill of
exceptions. The argument urged by the plaintiff in support of both
motions is that the rules and statutes prescribing the practice
Page 135 U. S. 568
and proceedings for the Supreme Court of the District of
Columbia in securing the review in a general term of that court of
a judgment at a special term have not been complied with in this
case. Neither of these motions can be sustained. We think the court
in general term acquired jurisdiction of the case, and, as it comes
here regularly from that court, we shall proceed to consider it
upon its merits.
There are seven assignments of error, which we will consider not
seriatim, but with reference to their relevancy to the
issues presented by the record. These issues are: (1) Was the
machinery with which the defendant worked defective and unsafe for
the purpose for which it was used, and, more particularly, was the
putting the belt on the large pulley by hand dangerous; or should
there have been a loose pulley, upon which the belt could have been
safely shifted by means of a lever? (2) Assuming that there was
this defect in the machinery which made it dangerous, was the
plaintiff ignorant of the defect, or of the danger connected with
it? (3) Did the defendant, in failing to notify the plaintiff of
the danger, have reason to believe the plaintiff was ignorant
either of the nature of the machinery, or of the danger incident to
its use? (4) Was the plaintiff guilty of such contributory
negligence as precluded a recovery?
The three instructions given by the court to the jury as
requested by the counsel for the defendant were to the effect that
if the jury believed from the evidence that anyone of the three
following conditions or state of facts existed, the plaintiff could
not recover: (1) that the accident would not have occurred but for
the negligence or want of ordinary care and caution on the part of
the plaintiff; (2) that the foreman of the shops, on the Saturday
evening preceding the accident, ordered and directed the plaintiff
to take the belt off the pulley, and to send on Monday morning for
Moore to put it on, he was bound to obey the order directing him to
send for Moore, and his not obeying it was such negligence as would
prevent a recovery in this action, and (3) assuming that putting on
the belt was attended with danger, the question to be
Page 135 U. S. 569
determined by the jury was not whether the plaintiff knew of
such danger, but whether a man of ordinary care and observation, in
his situation, would have known it, as he must be presumed to
possess that degree of intelligence, and that if, with such
observation and care, he would have known the danger, then, in
putting on the belt, he assumed all the risks incident thereto.
The instruction given by the court on its own motion was as
follows:
"If the jury find from the evidence that, after he was employed
by the defendant, the plaintiff voluntarily, and without being
required so to do, attended to the belt, and habitually, and with
the knowledge of the defendant's officers, placed the same in
position without accident, and his course of conduct in relation
thereto was such as to induce the defendant or its officers to
believe that he had the requisite skill for that purpose, or that
he had willingly assumed the duty of so placing the belt, the
defendant was not in default for not having instructed him as to
any danger incident to the operation."
Another instruction given by the court in lieu of the sixteenth
one requested by the defendant was as follows:
"But the jury are instructed that the defendant was not a
guarantor of the safety of its machinery, and was only bound to use
ordinary care and prudence in the selection and arrangement and
care thereof, and had a right to use and employ such as the
experience of trade and manufacture sanctioned as reasonably
safe."
The other instructions given by the court were modifications to
a degree of those asked by the defendant, and were mere
amplifications of those above mentioned.
We do not think there was any error in any of these instructions
of which the defendant has any right to complain. The propositions
contained in them are in strict accord with the principles laid
down by the decisions of this Court.
Hough v. Railway Co.,
100 U. S. 213,
100 U. S. 217;
Northern Pacific Railroad v. Herbert, 116 U.
S. 642,
116 U. S.
647-648;
Kane v. Northern Central Railway,
128 U. S. 91,
128 U. S. 94;
Jones v. East Tennessee &c. Railroad Co., 128 U.
S. 443.
Page 135 U. S. 570
The general principles of law by which the liability of an
employer for injuries to an employee growing out of defective
machinery is tested are well settled by those decisions. Neither
individuals nor corporations are bound, as employers, to insure the
absolute safety of the machinery or mechanical appliances which
they provide for the use of their employees. Nor are they bound to
supply the best and safest or newest of those appliances for the
purpose of securing the safety of those who are thus employed. They
are, however, bound to use all reasonable care and prudence for the
safety of those in their service by providing them with machinery
reasonably safe and suitable for the use of the latter. If the
employer or master fails in this duty of precaution and care, he is
responsible for any injury which may happen through a defect of
machinery which was or ought to have been known to him and was
unknown to the employee or servant. But if the employee knew of the
defect in the machinery from which the injury happened, and yet
remained in the service and continued to use the machinery without
giving any notice thereof to the employer, he must be deemed to
have assumed the risk of all danger reasonably to be apprehended
from such use, and is entitled to no recovery. And further, if the
employee himself has been wanting in such reasonable care and
prudence as would have prevented the happening of the accident, he
is guilty of contributory negligence, and the employer is thereby
absolved from responsibility for the injury, although it was
occasioned by the defect of the machinery, through the negligence
of the employer.
The state decisions in harmony with the principles laid down by
this Court on this subject are too numerous for citation.
We will now briefly notice the assignments of error, the first
of which is that the court erred in refusing to direct the jury to
return a verdict for the defendant, as requested by counsel.
It is argued in support of this assignment that there is not a
scintilla of evidence to show negligence on the part of the
defendant as the employer of the plaintiff; that the part
Page 135 U. S. 571
of the machinery which caused the accident was not defective;
that the evidence showed it to be of the most approved character,
purchased without regard to cost, and such as was generally in use
throughout the country; that loose pulleys and a shifter or level
for shifting the belt were not used in blacksmith shops; that the
plaintiff had been in the shop for nearly eighteen months, and had
become familiar, by constant use, with the operation of putting the
belt on the pulley, and it was impossible for him not to know what
danger attended its use; that the company had employed a man,
competent and skillful, whose duty it was to put on all the belts
in the establishment; that it was not in the line of the duty of
the plaintiff to put on this belt, and whenever he did so, he was
acting outside the scope of his employment; and lastly that the
manner in which the accident occurred, as described by the
plaintiff himself, in failing to wait until Kline had slowed up the
engine, shows that he was, by his own heedlessness and rash want of
care, the author of his own misfortune. On the other hand, the
evidence offered by the plaintiff certainly tended to show that the
injury would not have occurred but for the defect of the fixed
pulley and the projecting screw; that the machinery was unsafe, and
not such as was generally used in shops of that kind, as testified
to by experienced machinists introduced by the plaintiff, and the
only one examined in behalf of the defendant; that he (the
plaintiff) was unaware of the dangers attendant upon putting on the
belt by hand; that he did not know that the belt in which he was
caught had been recently, and perhaps imperfectly, repaired; that
there were in the other shops of the establishment shifters and
levers which could put the belt on the pulley without danger; that
he was wholly unaware of the danger attendant upon putting on the
belt by hand, and that he supposed he was in the line of his duty
when the injury happened.
If this evidence was worthy of belief, it certainly could not be
said to show such contributory negligence as would justify the
court in directing a verdict for the defendant below. As a general
rule, the question of contributory negligence is one for the jury,
under proper instructions by the court, especially
Page 135 U. S. 572
where the facts are in dispute and the evidence in relation to
them is that from which fair-minded men may draw different
inferences.
Railroad Company v.
Stout, 17 Wall. 657. Upon every question in the
case -- the safety or unsafety of the machinery, the ignorance on
the part of the plaintiff of the danger of it, and the negligence
of the plaintiff at the time of the accident -- the evidence was
controverted, and rendered the case just such a one as this Court
in
Jones v. Railroad Co., supra, said that "a due regard
for the respective functions of the court and the jury would seem
to demand that these questions should have been be submitted to the
jury." In the language there used,
"we see no reason, so long as the jury system is the law of the
land, and the jury is made the tribunal to decide disputed
questions of fact, why it should not decide such questions as these
as well as others."
There are two recent cases in Massachusetts which are so
analogous in many of their features to the case under consideration
that we deem a special reference to them proper.
Daley v.
American Printing Co., 150 Mass. 77, was an action by an
employee for personal injuries sustained while in the performance
of his duties in the defendant's mill, using an elevator operated
by a belt passing over a pulley on a shaft. At the trial, the
evidence introduced by the plaintiff tended to show that the belt
was frequently off the pulley, that there was no one in the employ
of the defendant specially charged with putting it on when it came
off, and that anyone using the elevator put the belt on when he
found it off. It further showed that the plaintiff, having occasion
in the course of his regular duties to use the elevator, found the
belt off and proceeded to put it on, but in so doing was caught in
a setscrew projecting from a collar on the shaft, and whirled
around the shaft, and received serious injuries. The defendant
introduced testimony to show that there was another man whose duty
it was to put on the belt. At the conclusion of the testimony, the
trial court directed a verdict in favor of the defendant, and, the
case being carried up on exceptions to the Supreme Judicial Court,
that court reversed the judgment of the court below and ordered a
new trial. In its opinion, the court said:
Page 135 U. S. 573
"The ground upon which the case was withdrawn from the jury is
not stated, but we cannot say as matter of law that no sufficient
evidence was introduced or offered of negligence on the part of the
defendant, or of freedom from negligence on the part of the
plaintiff. . . . If the machinery was found to be unsuitable, and
if the plaintiff was within the line of his duty in attempting to
adjust the belt, we cannot say that he was not entitled to go to
the jury on the question of whether he was in the exercise of due
care."
Myers v. Hudson Iron Co., 150 Mass. 125, was an action
for personal injuries sustained by the plaintiffs while in the
employ of the defendant. We extract from the syllabus the
following:
"A mine was reached through a vertical shaft by a bucket lowered
by the unwinding of a rope from the uncoupled drum of a hoisting
engine, and usually controlled in its descent by a brake operated
by the engineer. Laborers employed in the mine entered the bucket
to descend as usual, and upon word being given the engineer started
to let it down, but soon found that the brake was not holding. The
bucket fell rapidly for many feet, when it was suddenly stopped by
planks across the shaft, and the laborers were hurt. In actions
against the employer to recover for such injuries, there was
evidence that the brake, besides a loss of initial efficiency, was
in design and original construction insufficient; that there were
safer contrivances for controlling such a descent, some of which
the defendant used elsewhere about the mine, and that gearing used
in hoisting had, through wear and a change made in it by the
defendant, become less useful as a possible means of stopping the
bucket if the brake failed to hold, and in fact proved ineffectual
to stop the bucket at the time; also, that no person had previously
been hurt in going down in the bucket.
Held that the cases
were properly submitted to the jury, who were warranted in finding
verdicts for the plaintiff."
In the course of the opinion, the court said:
"The risk of the safety of machinery is not assumed by an
employee unless he knows the danger, or unless it is so obvious
that he will be presumed to know it."
And in another part of the opinion, it
Page 135 U. S. 574
was said:
"The plaintiffs were allowed to show that other machinery or
appliances than those used by the defendant would have been safer
-- for example, a strap-brake, a friction V, so called, or a
reversible engine. In order to aid the jury in determining whether
the defendant had exercised reasonable care in providing and
maintaining the machinery actually in use, it was competent to show
what other kinds of machinery or appliances were used elsewhere,
and might have been used at shaft No. 1.
Wheeler v. Wason Mfg.
Co., 135 Mass. 294, 298. It does not follow from the
introduction of such evidence that the defendant was bound to use
the very safest or newest, or any particular machinery or
appliances, but, as 'reasonable care' is a relative term, the jury
might properly consider what could be done to secure safety, and
the evidence was competent."
As regards the instruction given by the court on its own motion,
above quoted, we think nothing contained therein is prejudicial to
the defendant. Indeed, it may be doubted if it did not favor the
defendant more than the evidence in the case, and the law
applicable thereto, would warrant.
The same remark is true of the instruction given by the court in
lieu of the sixteenth one asked by the defendant. That instruction,
as requested, was as follows:
"The employer is bound to use ordinary care and prudence in
providing proper machinery, but he is not a guarantor of its
safety. If he uses ordinary care and prudence, he is absolved from
responsibility. The machinery need not be the safest of the kind,
provided it is such as a person of reasonable care and prudence
would provide."
The one given by the court in lieu thereof was as follows:
"But the jury are instructed that the defendant was not a
guarantor of the safety of its machinery, and was only bound to use
ordinary care and prudence in the selection and arrangement and
care thereof, and had a right to use and employ such as the
experience of trade and manufacture sanctioned as reasonably
safe."
The instruction here given is in a large part identical with the
language used by this Court in
Hough v. Railway Co.,
supra. The assignment of error is inexact in its statement
that the court said, in effect, "that that
Page 135 U. S. 575
defendant was bound to use and employ such machinery
only as the experience of trade and manufacture
sanctioned as reasonable and safe.'" What the court said was that
the defendant "was only bound to use ordinary care and
prudence in the selection and arrangement and care" of its
machinery. In adding that the defendant had the right to use such
machinery "as the experience of trade and manufacture sanctioned,"
the court imposed no additional obligation upon it, but relaxed the
rigor of the rule in its favor. If there was any error in such
relaxation, the defendant could not complain of it. But, taken in
connection with the other instructions given by the court on that
question, we think the instruction as it stands was just and
reasonable -- at least not prejudicial to the defendant.
We repeat, we are of the opinion that all of the instructions
sufficiently guarded the interests of the defendant, and that, in
the language of the court below, "if there was any error, it was in
too great an indulgence and relaxation of the law in its
favor."
Nor do we see any error in the refusal of the court to grant all
the instructions prayed for by the defendant. Such of them as were
correct as mere abstract propositions had already been covered by
the instructions which the court had given. The others, had they
been granted, would, as conclusions of law, have bound the jury to
render a verdict for defendant.
For the foregoing reasons, the judgment of the court below
is
Affirmed.
MR. JUSTICE BREWER, not having been a member of the Court at the
time this case was considered, took no part in its decision.