\.940
FEDJ:}RAL REPORTER,.
vol. 55.
Qf the'master to pl'()vide a safe place for the servant when in the ·perfGrmance of his work: [ "Again, a master employing a senant 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 surroUlHled, shall b(' reasonably safe. It is tho master who is to provide the place and the tools and the m:whinery, 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 machiner;r than such as is obvious and neCeSSlll'Y. 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 mnttPl' of necessity, MId cannot be obviated. But within such limits the master who provides the place, the tools, and +he machinery owcs a positive duty to his elllllloye in respect thereto. That positive duty does not g'o to the extent of a guaranty of safety, but it does require that reHsonable precautions be taken to secure safety, and it matteI'S not to the whom that safety is or the reasonable precautious therefor taken. He has a right to look to the master for the discharg'(' of that duty, and if the master, instead of dicharging it himself, sees fit to have it attcnded to by others, that does not change the measure of ob'ligation to the employe, or the latter's right to insist that reasonable precaution shall be t..'lken to secure safety in these l'l'Spects."
These principles prevail in the courts of Delaware and Pennsylvania. Foster Y. Pusey, (Del. Super.) 14 At!. Rep. 545, 547; Trainor v. Railroad Co., 137 Pa. St. 148, 20 Atl. Rep. 632. But, again, where a servant reeeives an injury, occasioned in part by the negligence of his master and in part by that of a fellow servant, the master is liable. Railway Co. v. Cummings, 106 U. S. 700, 1 Sup. Ct. Rep. 493; Paulmier v. Hailroad Co., supra. We think Roach occupied the position of vice principal, but, even if he was a mere fellow servant with Harkins, and guilty of, negligence, the defendant could not escape the consequence of its own negligence. The twenty-ninth, thirtieth, and thirty-first assignments relate to the instructions of the court in answer to the defendant's requests upon the question of the supposed negligence of Harkins. Without quoting those instructions, we. content ourselves with stating that we think they are entirely free from errol', especially in view of the final instruction of the court in the general charge. But ,we must add, that we can discover nothing in this record which would sustilin a finding that Harkins was guilty of contributory negligence. The judgment of the circuit court is affirmed.
NORTHERN PAC. R. CO. v. PE'rI<)HSON et a1, (two cases.) (Circuit Court of Appeals, Eighth Circuit May 1, 1893.) Nos. 198, 199. RAILROAD .cOMPANIES-ACCIDENTS AT CROSSINGS-EVIDENCE.
.
Plaintiffs, ri<Jing in a wagon immediately in the rear of another wngon driven by a boy of 15, were approaching a railroad crossing, with whoS(, surroundings they were unfamiliar, on a dark night The wagons were stopped at a point which was some 85 teet from the track, with whose
NOR',rHEfl;N
R. CO. V. PETERSON.
941
exact lo'Cation they were unacquainted. From this point there WUB a view of less than 500 feet of the track, owing to a deep cut near the crossing. Here they looked and listened, but, perceiving no train, started on again. At this moment their attention was attracted to a light some 40 rods in front and a little to the left of them, which they tool>:. to be on the mil road, and whieh they wat hed until the second wagon was on the track, when for the first time they :l train to their right, some 10 or 15 rods distant; and approaching at the rate of 30 miles an hour. Before they could avoid the danger the engine struck the wagon, killing the horses and injuring plaintiffs. Held, that it could not be said as matter of law that they were gUilty of contributory negligence, and the case\vas one for the jury.
In Error to the Circuit Court of the United States for the District of Minnesota. These were actions by Charles U. Peterson against the Northern Pacific Railroad Company and by Frank O. Petel'&on against the same defendant for pel'sonal injuries. There was judgment for plaintiff in each case, and defendant brings error. AtIirmed. Tilden R. Selmes, for plaintiff in error. John 'V. Arctander, for defendants in error. Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge. SANBORN, Circuit Judge. 'Dhese writs of error were sued out to revel'Se two judgments against the Northern Pacific Ha.ilroad Company, the plaintiff in error, and in favO'l' of the defendants in error, respectively, which were rendered on account of personal injuries resulting to them from the collision of an engine and train of cars operated by the company with a wagon in which they were croosing the raHroad upon the public highway. The defendants in error, who were the plaintiffs below, and who will be so designated, br<mghtsepal'ate actions, but these actions were tried together to the same jury, and the verdids and judgments rest upon the same record. This record discloses the following facts: Between 7 and 8 o'clock in the evening of November 28, 1890, the engine drawing a passenger train the wagon in which the plaintiffs were c'l'ossing the track, and seriously injured them. There was no lliQlOn. The night was dark and cloudy. 'fhe plain· tiffs were returning from St. Paul, where they had been to rna:rket some produce,to their homBs in Ohisago county, about 37 miles northea'st of the city. 'White Bear is a town between St. Paul and Chisago oounty, and the accident occurred at the c1'08sing of one of the highways between St. Paul and White Bear, about six miles from the city. The railroad runs east and west at this point and the highway crosses it at grade, and at right angles. The tmin that injured the plaintiff,s came from the east, and strUck them as they cl'OOSed the track going north. Two hundred feet east of the crossing the railroad enters a cut which is 400 feet in length, about 9 feet in depth at its deepest point, and which diminishes in depth in each direction from tha't point. For abo,ut 1,900 feet ea,st of the crossing the track is straight, but at that
942
FEDEluli RlllPORTER,
point there is a sharp curve in: a cut about 16 feet deep. On account of the cut 200 feet east of crossing, and other obstructions to the vision, one appl'Daching· the raill'oad from the south on the highway could not see an . engine approaching crossing from the east at La distance of more than 540 feet when he was further southtb.aJl47 feet from the middle of. the tra.ck, but froon that point to -the tmck rfue line ofvlsionrapidly extended until, when he reached the track, he oould see an engine apP,roaching at a distance of about 2,000 feet. As the plaintiffs approached the cros,sing, August Peterson, a boy 15 Y0M'S old, and the son of the plaintift FrankO. Peterson, was driving the latter's team of mules, which was attached w a lumber wagon, and the plaintiff Oharles U. Petel'son was driving his own team of horses, attached to a similar wagon, just behind the mule team, and Frank O. Peterson was rjding with him. No one of these three persons was familiar with the topography of the land about this crossing, or knew of the cuts or curves to which we have referred. None of them was familiar with the highway, or hiad traveled over it more than three or four times. None of them knew where this railroad crossing was, though they knew there was such a crossing-somewhere between St. Paul and Whilte Bear. The teams traveled about three miles an hour. They stopped when the mule team was about 85 feet south of this crossing, and the plaint,iffs and' the boy looked and listened, but neither heard no'r s'aw anything of the coming train. The team's walked forwa:rd, -and, as they started, the attention of all three of the travelers was directed Wig' light about 40 rods 'in front and a little to the left of them, which they suppo:sed was on the railroad. They watched this light until the forward team had just crossed the track and the rea,r team was just upon it, when they first saw and heard the engine which WUiS approaching 'from the east at the raw of 30'miles an hour, and rut a distance of only 10 or 15 rods from them.:. .Before the second team C:ould CfO'Sj3, the enginetl' smck it, killed the horlses and injured ,the men. The headlight of .the engine w,ws hrightly burning. There wa's the usual oon:fiiot 'of testimony as to whether or not the whistle was sounded 01J:" the bell rung as the engine appro,ached the croStSing. The plaintiff's witnesses swore that they were not; the defendant's, that they were. At the close of the testimony the defendant requested the court to instruct the jury to return a verdict in its ·'favor. The court refused therequest,-andthis refus.al is the only error assigned. · The questiono'f the negligence of the defendant could be debermined only by finding whetihetr or not the whistle was sounded o-r the bell rung as the engine approached the c1'OlSsing. These facts were disputed, and the court was compEllled to suhmit their determination·w the jury;' 'so that the only question r<aised by this request was whether or not, under this evidence, the plaintiffs were 'SO oonclus,ively shown to be guilty of contributory negligence that they were not entitled to Tecover. It is only when the facts are undisputed, and are suoh that reasonable men can fairly
BORN MANUF'G CO. V. ERICKSON.
,
943
draw but one conclusion from them, that-the question of negligence is ever considered one of law for the court. Railway Co. v. Jarvi, 53 Ped. Rep. 65--70, 3 C. C. A. 433; Railway Co. v. lves, 144 U. S. 409--417, 12 Sup. Ot. Rep. 679; Railway 00. v. Oonvellse, 139 U. S. 469, 11 Sup. Ct. Rep. 569; Railroad 00. v. Pollard, 22 Wall. 341; Bennett v. Insurance Co., 39 Minn. 254, 39 N. W. Rep. 488; Abbett v. Railway Co., 30 -Minn. 482, 16 N. W. Rep. 266. Tested by this rule, the court below properly refused to take tMs case from the jury. The question was whether or not the plaintiffs were at the time of the accident exercising that ordinary care and diligence to protect themselves from injury that rel1;sonably prudent .and oareful men would have used in similar circumstances. The evidence in this case was not such, in our opinion, as would compel all reasonable men to draw the inference that they did not exercise that care. The darkness of the night; the proximity of the cut to the crossing, and plaintiffs' ignorance of it; the facts that they were not famili3JI' with the highway; that 'bhey did not know the place of the crossing; that when the forward team was 85 feet from it they 'Stopped, looked, and listened for the train, but neither saw nor heard anything of it; tha:t the tmin was running ata speed which enabled it to pass from the cut to the c,!'ossing in less than 5 seconds; that, as the jnry must have found, no bell was rung or whistle sounded; and that from the time their teams started forward again until they were upon the tflack, and the approaching engine wa.s within 15 rods {)rf them, their 'attention was absorbed by the light 40 rods in front of them and on their left, which they supposed was on the railrood,-present an array of facts and circumstances from which we are unable to say that reasonable men might not fairly infer, as did the jury at the trial, that these plaintiffs exercised as much care as reasoI\ably prudent men would have used under such circumstances. The judgments below are accordingly affirmed, with oosts.
BORN MANUF'G CO. v. ERICKSON et al. (CirCUit Court of Appeals, Eighth Circuit. May 1, 1893.) No. 194,. 1. INJURY TO MINOR EMPLOYE-WARNING OF DANGER.
It is the duty of a master to llotify a minor servant of the ordinary risks and dangers of his employment, which thl'! former knpws, or which a master of ordinary lIrudence and intelligence would, under lil(e ci rcumstances, know, the minor does not understand or appreciate, and to bistruct him huw to a,-oid them.
2.
SAME-ORDINARY RISKS.
No duty rests upon the master to notify the minor servant of the ordinary risks and dangers of his occupation which the latter actually knows and appreciates, or which are so open and apparent that one of his age, experience, and capacity would, under like circumstances,b;r the exercise of ordinary care, know and appreciate. These dangers the minor assumes.