Hayes v. Western Fuel Co.

Respondent was awarded by a jury a verdict for $5,000 for personal injuries received while employed in filling buckets with coal in the hold of a vessel belonging to appellant. The circumstances of the accident, the extent of the damage and the particular ground for charging responsibility to defendant are disclosed in the following allegations of the complaint:

“That on said twenty-sixth day of March, 1907, while plaintiff was so employed by defendant and while he was so engaged in the performance of the duty for which he was employed, to wit, filling said buckets with coal in the hold of said vessel, defendant was hoisting from the hold of said vessel one of said buckets filled with coal, and the same overturned above said hatchway and at a great height, to wit,

seventy-five feet above and directly over the place in said hold where plaintiff was working, and the contents of said bucket, to wit, over one thousand pounds of coal, fell upon and around said plaintiff, and broke and splintered the bones of one of plaintiff’s legs so badly that part of said bones had to be removed, and broke two of plaintiff’s ribs, and otherwise greatly bruised and injured plaintiff and thereby caused him great pain and suffering.

“That said bucket which overturned and emptied its contents upon plaintiff as aforesaid was at the time, and long prior thereto, defective and broken; that the rim on the upper rear part of said bucket was cracked, thereby causing the latch which is fastened to the bale of said bucket at one end, and to the clutch on the rear of said bucket at the other, and which prevents said bucket from dumping before reaching the defendant’s bunkers, to becpme loosened and thereby causing said bucket to overturn in midair. ’ ’

It is also alleged that the defendant had knowledge of the defective condition of the bucket, but negligently continued to use it till plaintiff was injured. The answer expressly admitted the employment and the allegations concerning the nature of the work, the character of the accident and the extent of the injury, but denied the other material averments of the complaint and set up as an affirmative defense that-the injury was caused by the fault and negligence of the plaintiff, and, furthermore, that said injury was chargeable to the risks of plaintiff’s employment at the time of the accident, “which said risks had been and were duly assumed by the plaintiff.”

From the standpoint of respondent the case involves primarily the application of the familiar legal doctrine, declared in the decisions over and over again, that it is the duty of the master to furnish reasonably safe appliances to the servant for the prosecution of his work and to exercise reasonable care in keeping said appliances in a safe condition for use, and if an injury results to the servant from the failure of the master to perform this duty, the latter is liable for the consequences. Speaking generally, it may be said that in the record there is found ample support for this theory of respondent. From the direct and circumstantial evidence a rational inference may be drawn that the said coal bucket

These considerations will receive more specific attention as notice is given to the various contentions of appellant.

Of these, in the foreground of the discussion and manifestly constituting a proposition of vital importance in the determination of the appeal, the assertion is made by counsel that the case comes within the rule, “that where a master provides and keeps proper tools or appliances for the use of his servants and delegates to them the duty of selecting such as they require, then the master is not responsible if the servant voluntarily uses a tool or appliance that has become obviously defective and unfit for use, and is injured by reason thereof.”

Concerning this statement of the rule and the propriety of invoking it in the ease before us, several suggestions seem not inappropriate. In passing, it may be said that there is some inaccuracy in the language used. It rather implies that if the master provides and keeps only proper tools or appliances for the use of the servant, and the servant voluntarily selects therefrom one obviously unfit, the master is not liable. Where only proper tools are supplied, it is manifest that no room can be found for the unfit. But, interpreting the rule, as no doubt intended, to contemplate the case where a proper tool has become unfit from use and is then selected by the servant, it is clear, upon principle and under the authorities, that the rule must be applied with great caution. Otherwise, we will find the problem embarrassed by the presence of two antagonistic and- irreconcilable- principles. Since the master

It may be well to notice how the subject has been treated by some of the authorities.

In Bailey’s Personal Injuries, volume 1, section 251, it is said: “It is well settled that it is the duty of the master to' provide suitable and safe machinery and appliances for the' use of his operatives, and it is also settled that the duty does not stop here, but that it is likewise his duty to keep such machinery in proper repair and in safe working order, and if these duties or any of them are negligently performed, and one of the servants thereby sustains an injury, the master is liable, even though he may have intrusted the performance of such duties to subordinates, by whatever name they may be-called.”

In Daves v. Southern Pac. Co., 98 Cal. 19 , [ 36 Am. St. Rep. 133 , 32 Pac. 708 ], it is said: “The duties which a railroad, corporation owes to its servants and which it is required to perform are to furnish suitable machinery and appliances by. which the service is to be performed and to keep them in repair and order. . . . The performance of these duties cannot be shifted by it to a servant so as to avoid responsibility for. injury caused to another servant by its omission. Nor is their negligent performance one of the ordinary risks of the service impliedly assumed by the emplojme by his contract of employment.” The doctrine is more elaborately considered and presented in Sanborn v. Madera Flume etc. Co., 70 Cal. 261 ,. [ 11 Pac. 710 ], and Tedford v. Los Angeles Electric Co., 134 Cal. 76 , [ 54 L. R. A, 85 , 66 Pac. 76 ].

Respondent’s classification of the cases upon the subject,, while probably somewhat arbitrary, possesses merit, and it may be of assistance in the consideration of apparently con--flicting decisions. It is thus claimed that “the eases where the servant is injured as a result of some defect in appliances: furnished by the master fall into three general classes, as follows : 1. Where there are defects or breaks in appliances fur-, nished by the master which should not be defective or broken.Such is the case here. 2. Where the injury, results from some defect in the adjustment or preparation of the appliance, and. where the adjustment or preparation is to be done by. the -ser.-, vant, and is a part of the work that he is employed to do;: obviously different from the case at bar. 3. Where the defect, in the appliance is one necessarily - attendant upon the use of-

In the second class are placed the following cases cited by appellant: Burns v. Sennett, 99 Cal. 363 , [ 33 Pac. 916 ]; Kerrigan v. Market St. Ry., 138 Cal. 509 , [ 71 Pac. 621 ]; Leishman v. Union Iron Works, 148 Cal. 274 , [ 113 Am. St. Rep. 243 , 3 L. R. A., N. S., 500 , 83 Pac. 30 ]; Manning v. Mining Co., 149 Cal. 35 , [ 84 Pac. 657 ]; Kelley v. Norcross, 121 Mass. 509 ; Fraser v. Red River Lumber Co., 45 Minn. 237 , [ 47 N. W. 785 ]; Treka v. Burlington etc. Ry. Co., 100 Iowa, 200 , [ 69 N. W. 422 ]. The interesting and specific review of these cases by respondent might well be reproduced if time and space would permit.

The other cases cited by appellant are assigned by respondent to the third class, of which we mention only those from this state, as follows: Callan v. Bull, 113 Cal. 593 , [ 45 Pac. 1017 ]; Helling v. Schindler, 145 Cal. 305 , [ 78 Pac. 710 ]; Towne v. United etc. Co., 146 Cal. 769 , [2 Ann. Cas. 905, 70 L. R. A. 214 , 81 Pac. 124 ], Of these, the Towne ease is particularly relied upon by appellant as. decisive of the controversy here. This position, it is believed, cannot be maintained, on account of the vital difference between the facts of that case and this. Adopting substantially the' language of respondent, we find the Towne case to be as follows: A lineman, in the employ of the defendant, was injured by the falling of an electric light pole which the plaintiff and others were removing from the street. The men were furnished with pike poles, which were about ten or twelve feet in length, about two inches in diameter, one end having an iron ferrule and an iron pike at the end, about one and a half inches in length, to be used in bracing the poles to be removed and to keep them from falling while the man engaged in removing the wires was up the pole. Plaintiff was directed to climb and clear the wires from one of the poles, and another man was directed to brace the pole on its unprotected side with a pike pole. This man took from the pike poles, which were then and there on the ground within reach, a pole which had

But there are certain vital facts, deducible from the view that we must take of the evidence, some of which will be specified, that render it clear that the rule of the Towne case has no application here. One decisive circumstance is that the bucket, in its defective condition, was furnished by appellant to plaintiff when he began his work. We have a right to infer that it was not selected by plaintiff, furthermore that it was not his duty to select it, and that there was no change in its condition during his employment. The accident occurred the day he was employed and when he began his work, and the manner in which the defective tub was supplied is related by the witness Carlson as follows: “ I was not foreman in the hatch where plaintiff was working, but I was foreman on the other hatch. When I found that tub was broken, I took it

Again, the burden was upon appellant to show that respondent actually had or ought to have had knowledge of the defective condition of said bucket. From, the record we can say that neither inference is so imperative as to exclude any other rational conclusion. Indeed, there is no direct evidence upon the subject of plaintiff’s actual knowledge, neither party having seen fit, apparently, to question him concerning' it.

In brief, therefore, under the settled principles of appellate» practice, the record presents us the case of a master furnish ing his servant with a defective appliance, not only with the presumption of knowledge which the law imposes, but with actual knowledge of its unfitness, and giving no information of its condition to the servant, who does not know and is not required to know that the appliance is otherwise than normal, and injury subsequently resulting from the use of said appliance. Hence, the general rule contended for by respondent is rendered clearly applicable.

Besides, the law of the servant’s responsibility in operation at the time of this accident was somewhat different from its condition when the Towne case was decided. In 1907 section 1970 of the Civil Code was amended, in addition to other respects, by adding the provision that “Knowledge by an employee injured of the defective or unsafe "character or condition of any machinery, ways, appliances or structures of such employer shall not be a bar to recovery for any injury or death caused thereby, unless it shall also appear that such employee fully understood, comprehended and appreciated the dangers incident to the use of such defective machinery, ways, appliances or structures, and thereafter consented to use the same, or continued in the use of the same. ’ ’

There is not only no evidence that plaintiff “fully understood, comprehended and appreciated” the dangers incident to the use of said defective bucket, but it is quite reasonable to hold that if he knew of the defect, he believed there was no additional danger incident thereto. Indeed, defendant denied under oath not only that the bucket was broken or defective,

This effort to prove that the bueket could be safely operated has given rise to one point of controversy in reference to a ruling of the court. The witness Olinder, a blacksmith, who had been in the employ of defendant for several years and' whose duty it was to repair the tubs and machinery generally, after stating that following the accident he discovered that a bolt was missing from the tub, was asked the question: “Will the absence of the bolt produce such a looseness that it would dump?” Assuming that the question involved a matter of expert testimony, it is entirely apparent, as pointed out by respondent, that the ruling sustaining an objection was not prejudicially erroneous for the reason that plaintiff in his complaint did not count upon any such defect, and for the reason that the ground was entirely covered by the witness in answer to other questions.

There are two assignments of error in relation to the instructions.

As we understand the law of negligence, one phase of it was correctly given by the court as follows: “While the servant assumes all the orditiary risks of the business in which he is employed, he does not, by reason"of his employment, assume the risk of defective premises, machinery or structures furnished by the master, if the defect was either known to the master, or could have been, discovered by the master by a reasonably careful inspection.” Appellant’s objection to the instruction is stated in this language: “This instruction tells the jury that the defendant is liable in this ease if they find that its tub was defective, and that it knew of or could have discovered the defect by a reasonably careful inspection, and that the plaintiff did not assume the ordinary risks of the business which were known to the defendant or could have been discovered by him.”

In this appellant is clearly in error. The court was not dealing with the ordinary risks of the business, but with the extraordinary condition occasioned by the act of the master in supplying defective appliances. Since it is the duty of the

Appellant complains of the action of the court in refusing to give the following instruction: “If you find frum the evidence that the tubs furnished for the use of the defendant’s employees were of the kind ordinarily used for the purpose by employers in the same line of business in the community, and if you find that the defendant at the time complained of employed a blacksmith to keep the tubs in repair, and if you further find the defendant kept on hand a. number of tubs in good repair, ready for use, any one of which could have been had and used by the employees at the time complained of, and if you further find that it was the duty of defendant’s employees to select for use tubs in good repair and discontinue the use of any tub that became defective while in use, then I charge you that the defendant performed its whole duty toward the plaintiff, and is not responsible in this case, even though you find that the employees selected for use a defective tub from among those in good repair kept on hand by defendant, or even though you find that the employees continued to use a tub after it became obviously defective. In such case your verdict must be for the defendant.” There are several objections to the instruction, as suggested by respondent. Probably the vital one is that it ignores and virtually nullifies the importance of the duty of the master in the first place to furnish suitable appliances. It also implies that he may relieve himself of this responsibility by delegating the task to an employee, although another employee in a different line of work may be injured in consequence of the act of the one who represents the principal in the selection of the appliance. There is a formal objection also that it lacks simplicity and was "likely to be misunderstood by the jury. Again, it is apparent that the particular phase of the law of negligence intended to be reached by said instruction was fully covered by other instructions which were certainly

We are convinced that there is support in the evidence for the negative answer of the jury to the question: “Do you find from the evidence that it was the duty of the stevedores employed by the defendant to select a tub or tubs that they were to use in their work from a number of tubs in good repair kept on hand by the defendant?” But even if not supported, the circumstance would not require a reversal of the case, since the general verdict could be sustained upon the theory of defendant’s negligence in leaving the defective bucket upon the deck of the vessel, whence it was taken and put into use in the hold.

It would be pleasing to follow more closely and completely the interesting argument of counsel, but the length of this opinion already invites apology.

The judgment and order are affirmed.

Chipman, P. J., and Hart, J., concurred.