Burlington & Colorado R. R. v. Liehe

Chief Justice Hayt

delivered the opinion of the court.

The plaintiff in this case was engaged in the performance of ordinary labor upon defendant’s track and road-bed; labor *283 in which no machinery or- tools were used requiring particular skill or care. The hand-car, the breaking of the rod of which it is alleged caused the injury complained of, was used .for the purpose of transporting appellee and other workmen along the track. No special skill was required in the use of this hand-car. At the time of receiving the injury complained of, appellee had quit work and with others was returning to the section house for dinner. He had been in the employment of defendant’s company for a period of twenty months previous to this accident, using this handcar daily during all of this period.

The right of plaintiff to recover in this case is based upon the duty of the railroad company to use reasonable care for the safety of its employees and to use like care in the selection of proper and adequate machinery for the proposed work and keeping it in repair; and the defendant’s alleged negligence in this particular, resulting, as it is claimed, in the injury complained of.

The master is not bound to provide and keep, for the use of his employees, machinery which is absolutely safe. The law imposes on him the duty, only, of exercising reasonable care and caution in furnishing and repairing such machinery. The rule is that when a person engages in the service of another, he undertakes as between himself and his employer, to assume all the ordinary danger and liability of the business upon which he is about to enter, and no more, and if, without fault on his part, he is injured as the result of the negligence of the master, the latter must answer in damages.

There are some exceptions to the rule stated. As, for instance, where the servant has equal knowledge with the master of the defects existing in the machinery the servant will be deemed to have waived his right of action for damages arising from injuries resulting from such defects. In considering the rules above stated, due regard must, of course, be had to the limited knowledge of the employee as to the machinery which he is called upon to use, and the fact that he has a right, to a certain extent, to rely upon the *284 superior knowledge of his employer. The rule in this regard, however, is not different in reference to a railroad company from that which governs the relations of master and servant in other instances. Its application must often depend upon the kind of machinery used, whether intricate or simple in construction. For instance, a gardener could not be held guilty of actionable negligence in furnishing a defective hoe or shovel to his employee. It does not rest with the servant in such cases to say that the knowledge of the master is superior to his own knowledge, because the knowledge of such implements may well be supposed to be the same to both. A hand-car is a simple piece of machinery, and we must assume that plaintiff, who had been using it for. a period of twenty months prior to the accident, was as familiar with its condition as the foreman upon'the section could have been. In fact, the plaintiff, while upon the witness stand, admitted that, for at least two months prior to the time of the accident, he knew of the defective condition of the rod, how much longer he may have been in the possession of this information does not appear. For two months, at least, he had been using this car with full knowledge of its condition. Under these circumstances the law conclusively assumes that he waived his right to hold the company responsible and took the risk upon himself, unless it be shown that he protested against the same and was induced to remain in the employment of the defendant by a promise of a remedy. A recovery is only warranted when the negligence of the defendant appears. A waiver as to such negligence places the case in the same position as though no negligence on the part of defendant had been shown. If, however, the master promised to remedy the defect, then the servant, if induced to remain by such promise, can recover while the promise is running, if he remains with a reasonable expectation that the repairs will be made. Colo. Cent. R. R. Co. v. Ogden, 3 Colo. 499; Wells v. Coe, 9 Colo. 159; Beach on Contributory Neg. § 8; 2 Thompson on Neg., p. 1148; L. R. R. R. Co. v. Orr, 84 Ind. 50. In the case at bar it is claimed that *285 notice of the defect in the hand-car was brought home to the section foreman in charge and that he promised to remedy the same. But the plaintiff’s testimony upon the point is so confused and conflicting that it is quite out of the question to determine therefrom whether he desired to be understood as saying that the defect in the rod was called to the attention of the section boss, or, merely, that the car was in bad shape. Upon cross-examination he admitted that he had said nothing about the defect in the rod. “ Q. Did you tell him what part of it — what part of the car did you say was in bad shape ? A. I told him that the hand-car is in bad shape, that is all I told him.”

The section foreman not only denies making any promise whatever, but swears positively that he knew nothing about any defect until after the accident. Conceding that it was the province of the jury to determine upon this conflict and that the conclusion was in favor of plaintiff, still we think the testimony was not of such a character as to bring home to the appellant knowledge of the particular defect discovered by appellee. Telling the foreman that the car was in bad shape was not sufficient. He should have pointed out with more particularity the defect which caused him to believe the car unsafe. Beach on Contrib. Neg. 372, and cases cited; Crutchfield v. R. & D. R. R. Co., 76 N. C. 320.

The plaintiff while upon the witness stand testified that he was ordered upon the car to go to dinner. Upon this testimony appellee seeks to hold the company for having ordered him into a position of extra hazard and the court instructed the jury accordingly. We think this is extending the rule too far. As we have shown, the appellee admits having used this car for at least three months with knowledge of its defective condition. He was in the habit of riding upon it several times each work day, and had ridden out upon it the morning of the accident. Certainly under these circumstances the obligations of the-parties were not changed by the section foreman calling attention to the fact that it was time for dinner or by telling the men to get on the car *286 and go to dinner. Other errors are assigned, but as they relate to matters that are not likely to occur upon a retrial of the cause, they will not be further considered. By the evidence the issues made by the pleadings were somewhat broadened. But as no objection was made below to the evidence the variance will not be further considered here. The judgment will be reversed and the cause remanded for a new trial, the parties to be allowed to amend pleadings as they may be advised.

Reversed.

Mr. Justice Elliot having presided at the trial below did not sit upon this appeal.