When a defendant, after the close of the plaintiff's evidence,
moves to dismiss, and, the motion being denied, excepts thereto and
then proceeds with his case and puts in evidence on his part, he
thereby waives the exception, and the overruling of the motion to
dismiss cannot be assigned for error.
A railroad company is bound to see to it, at the proper
inspecting station, that the wheels of the cars in a freight train
about to be drawn out upon the road are in a safe and proper
condition, and if the servants to whom it delegates this duty
perform it so negligently as to permit a car to go into service on
the train one of the wheels of which has an old crack in it some
twelve inches long, filled with grease, rust, and dirt, but which
could have been detected without difficulty, and in consequence of
that wheel's giving way while the train is in motion, an accident
takes place by which another servant of the company is injured, the
company is liable therefor.
This was an action brought by William Daniels against the Union
Pacific Railway Company, in the District Court for
Page 152 U. S. 685
the Third Judicial District of the Territory of Utah, to recover
damages for personal injuries alleged to have been sustained
because of defendant's negligence. During the pendency of the writ
of error in this Court, Daniels died, and his administrator was
substituted.
The complaint alleged that plaintiff was an employee of the
defendant company as brakeman on a freight train; that the company
by its negligence and carelessness allowed a wheel of one of its
freight cars to become defective through a large open crack in it
which rendered the car unsafe; that the crack was an old one, and
could have been easily discovered by a proper inspection of the
wheels; that it was the duty of the defendant to inspect the wheels
of all cars used by it and running on its road at stations at short
intervals along the line of the road; that an inspecting station
was established at Green River, Wyoming, at which point the defect
would have been discovered had the company's inspection service at
that point been suitable and sufficient; that the company
negligently and wrongfully employed incompetent agents in that
service; that they did not employ sufficient in number; that those
employed negligently inspected; that the defect by which the
accident and ensuing injuries were caused was not discovered by
reason of the company's negligence, and that plaintiff, without
fault or negligence on his part, was injured by the breaking of the
defective wheel and the train being thereby thrown from the
track.
The answer denied the essential averments of the complaint.
Plaintiff recovered a verdict, and defendant moved for a new trial,
which was overruled and judgment rendered, from which an appeal was
prosecuted to the Supreme Court of Utah Territory, where it was
affirmed. The opinion is reported in 6 Utah 357. To review that
judgment, this writ of error was sued out.
The errors assigned and relied on at the bar were that the court
erred in overruling defendant's motion for a nonsuit made at the
course of plaintiff's testimony; that the court erred in giving
each of the following instructions:
"8th. In this case, if you find that the plaintiff was
injured
Page 152 U. S. 686
in consequence of the wreck of the train caused by a crack and
break in one of the wheels of the car on a train operated by the
plaintiff, if you find that by the exercise of proper care and
caution in inspecting the wheels, the crack was of such a nature
that it might have been discovered by the agents or servants of the
defendant employed for that purpose, then such neglect to discover
the crack was negligence on the part of the defendant and for which
it may be held liable in this action."
"9th. If you find that there was a want of care and diligence on
the part of the persons engaged in inspecting the wheels of the
cars of defendant and that the accident was caused thereby, it is
not a defense for the defendant to show that it used proper
diligence and care alone and only in the selecting of such agents,
but the defendant is responsible for the acts of his employees in
repairing and inspecting machinery to the same extent as if he were
himself present doing the act."
And that the court erred in refusing to give each of the
following instructions requested by the defendant:
"Fourth. The plaintiff by his contract of hiring was held to
assume the risks of injury from the ordinary dangers of the
particular employment and the nature of the business engaged in,
and, if you find from the evidence that the accident causing the
injury in question was one of the perils incident to the
employment, your verdict should be for the defendant."
"Fifth. The presumption of the law in this case is that the
defendant exercised proper care and diligence in employing
competent and sufficient number of servants to safely carry on its
several departments of labor and in furnishing safe machinery and
appliances with which the plaintiff was to do his work, and the
burden of proof to show the contrary is on the plaintiff."
"You are further instructed that as between employer and
servant, as in this case, negligence on the part of the former is
not proven nor to be inferred from the existence of a defect which
caused the injury."
"Sixth. Although the inspector of the defendant at Green River
station whose duty it was to inspect the said broken wheel was
guilty of negligence in making the inspection, and
Page 152 U. S. 687
that negligence resulted in the wrecking of the train on which
the plaintiff was and the injury of which he complains, still he
cannot recover in this action unless it appears from the evidence
that the defendant was guilty of negligence either in the
appointment of such inspector or retaining him in his position, and
to establish such negligence on the part of the defendant not only
the incompetence of such inspector must be shown, but it must also
be shown that defendant failed to exercise ordinary care to
ascertain his fitness for that service prior to his appointment, or
failed to remove him after his incompetency had come to the notice
of the defendant or to some officer or agent of defendant having
power to remove him, or after such incompetency would have been
ascertained by the exercise of ordinary care on the part of the
defendant or such agent or officer."
"Seventh. To render the negligence of the inspector whose duty
it was to inspect the said broken wheel the negligence of the
defendant, or to render the defendant liable therefor, it is
incumbent on the plaintiff to prove that the said inspector was
appointed to or retained in his said position with knowledge on the
part of the defendant, or some officer or agent of it having the
power of appointment and removal, that he was incompetent, or that
such knowledge might have been obtained by the use of reasonable
and ordinary care and diligence on the part of the defendant or of
such officer or agent."
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
1. At the close of the plaintiff's evidence, the defendant moved
to dismiss the complaint, which motion was denied, and defendant
excepted. Thereupon the defendant proceeded
Page 152 U. S. 688
with its case, and adduced evidence on its part. This waived the
exception, and the action of the court in overruling the motion to
dismiss cannot be assigned for error.
Columbia & Puget
Sound Railroad v. Hawthorne, 144 U. S. 202;
Brown v. Southern Pacific Co., 7 Utah 288, 291.
2. The evidence tended to show that Daniels was a brakeman in
the employment of the company, and in the discharge of his duties
as such, April 3, 1887, on a freight train made up at Green River,
and running thence westward; that he was ordered on top of the
train to set the brakes at different points going down a long hill,
and was so engaged when the train was suddenly wrecked, and he was
severely injured; that a wheel on one of the cars of the train had
an old crack in it, some twelve inches long, which rendered it
unsafe; that the wheel gave way by reason of the fracture, and thus
the disaster occurred, and that, although the crack, being old, was
filled with greasy dirt and rust, it could have been detected
without difficulty if the wheel had been properly examined at Green
River, which was an inspecting station at which trains were made
up.
Upon the inferences properly deducible from such evidence, the
rule applied which requires of the master the exercise of
reasonable care in furnishing suitable machinery and appliances for
carrying on the business for which he employs the servant, and in
keeping such machinery and appliances in repair, including the duty
of making inspections, tests, and examinations at the proper
intervals. As observed in
Hough v. Railway Co.,
100 U. S. 213,
100 U. S. 218,
the duty of a railroad company
"in that respect to its employees is discharged when, but only
when, its agents whose business it is to supply such
instrumentalities exercise due care as well in their purchase
originally as in keeping and maintaining them in such condition as
to be reasonably and adequately safe for use by employees,"
and the company
"cannot in respect of such matters interpose between it and the
servant who has been injured, without fault on his part, the
personal responsibility of an agent who, in exercising the master's
authority, has violated the duty he owes as well to the servant as
to the corporation."
Hough v. Railroad Co., and
Northern
Pacific
Page 152 U. S. 689
Railroad v. Herbert, 116 U. S. 642, to
the same effect, were cited in
Balt. & Ohio Railroad v.
Baugh, 149 U. S. 368,
149 U. S. 386,
and it was said:
"A master employing a servant impliedly engages with him that
the place in which he is to work and the tools or machinery with
which he is to work, or by which he is to be surrounded, shall be
reasonably safe. It is the master who is to provide the place and
the tools and the machinery, and, when he employs one to enter into
his service, he impliedly says to him that there is no other danger
in the place, the tools, and the machinery than such as is obvious
and necessary. Of course, some places of work and some kinds of
machinery are more dangerous than others, but that is something
which inheres in the thing itself, which is a matter of necessity,
and cannot be obviated. But within such limits, the master who
provides the place, the tools, and the machinery owes a positive
duty to his employee in respect thereto. That positive duty does
not go to the extent of a guaranty of safety, but it does require
that reasonable precautions be taken to secure safety, and it
matters not to the employee by whom that safety is secured, or the
reasonable precautions therefor taken. He has a right to look to
the master for the discharge of that duty, and if the master,
instead of discharging it himself, sees fit to have it attended to
by others, that does not change the measure of obligation to the
employee or the latter's right to insist that reasonable precaution
shall be insist that reasonable precaution shall be taken to secure
safety in these respects. Therefore it will be seen that the
question turns rather on the character of the act than on the
relations of the employees to each other."
And see Fuller v. Jewett, 80 N.Y. 46;
Rogers v.
Ludlow Mfg. Co., 144 Mass. 198;
Spicer v. South Boston
Iron Co., 138 Mass. 426.
There can be no doubt that under the circumstances of the case
at bar, the duty rested upon the company to see to it at this
inspecting station that the wheels of the cars in this freight
train, which was about to be drawn out upon the road, were in safe
and proper condition, and this duty could not be delegated so as to
exonerate the company from liability to its servants for injuries
resulting from the omission to perform that duty, or through its
negligent performance.
Page 152 U. S. 690
The rulings of the court in giving the eighth and ninth
instructions for plaintiff and in refusing to give the sixth and
seventh instructions requested on the part of defendant were not
therefore open to the exceptions taken. The sufficiency of the
number of inspectors and their competency furnished no defense, nor
the contrary the ground of recovery, though some of the averments
of the complaint may have indicated that cause of action.
The trial court charged the jury, among other things, that the
defendant was required to
"use a reasonable care, consistent with the nature and extent of
the business, and provide proper machinery, but it is not
responsible for hidden defects, which could not have been
discovered by a careful inspection;"
that
"the burden of proof is in this case, as in all other cases like
it, upon the plaintiff, to make out his case to your satisfaction.
The law is well settled, both here and in England, our mother
country, that the employer should adopt such suitable implements
and means to carry on the business as are proper for that purpose,
and where there are injuries to its servants or its workmen, and
they happen by reason of improper or defective machinery or
appliances in the prosecution or carrying on the work which they
are employed to render, the employer is liable, provided he knew,
or might have known, by the exercise of reasonable skill, that the
apparatus was unsafe and defective. If, by reasonable and ordinary
care and prudence, the master may know of the defect in the
machinery which he operates, it is his duty to keep advised of its
condition and not needlessly expose his servants to peril or
danger;"
that
"in employing the plaintiff, the corporation defendant did not
become an insurer of his life or his safety. The servant takes the
ordinary risks of his employment. The duty of the defendant towards
him was the exercise of reasonable care in furnishing and keeping
its machinery and appliances, about which he is required to perform
his work, in a reasonably safe condition. It was the defendant's
duty also to use like ordinary care in selecting competent fellow
servants, and in a sufficient number to insure that the work would
be safely done, and this duty was discharged by the defendant
Page 152 U. S. 691
if the care disclosed by it in these several matters accorded
with that reasonable skill and prudence and care which careful,
prudent men, engaged in the same kind of business, ordinarily
exercise."
And that,
"as between employer and employee, between master and servant,
as in this case, negligence on the part of the former is not
proven, or to be inferred, simply from the existence or occurrence
of the accident which caused the injury complained of."
The defendant had no reason to complain because the fourth and
fifth instructions, which it asked, were not otherwise given than
as contained in the views thus expressed by the court.
Judgment affirmed.
MR. JUSTICE JACKSON did not hear the argument, and took no part
in the decision of this case.
