572
92 FEDERAL REPORTER.
whom the burden ofthe proof/imd who was bound to make out lJ:is. on the lines indicated by tbe trial court, the jury were plainly instructed that he would only be entitled to a verdict in the event that they believed his statement that he was ignorant of the condition of the clutch when he took charge of the dynamo room, and was ignorant of the fact that it had been bound up with wire. It must be presumed, in support of the judgment, that the jury obeyed this instruction, and found the facts as therein stated to be true; in w hieh event, as a matter of course, it is immaterial that the court, in stating the facts which would support the plea of contributory negligence, imposed upon the defendant the duty of showing, among other things. that the plaintiff was "conscious of his ignorance of that kind of machinery, and how to operate and repair it." The clause of the charge which has been criticised was probably due to inadvertence, and the court's attention should have been called to it at the time, if counsel regarded it as of any importance, and intended to rely upon the alleged error. We are unable to see, however, that it could possibly have done any harm; and, when a charge as a whole is not misleading, it is not a sufficient ground for reversal that some of the langllage found therein was not so nicely chosen as to defy criticism. Railway Co. v. Burr (Cir. Ct. App. 3d Cir.)91 Fed. 351. The jmjgment below is therefore affirmed.
JA.MES B. CLOW & SOXS v. BOLTZ.
(Circuit Court of Appeals, Sixth Circuit. No. 610.
March 7, 1899.)
1.
MASTER AND SEHVANT-DANGEROUS PLACE TO WORK-RECIPROCAl, DUTIES.
An employe has a right to presume, when directed to work in a purticular place, that reasonable care has been exereised by the employer to see that such place is safe, and Is not negligent In relying on such presumption, unless a danger Is obvious and should be known to a reasonaand for that reason the degree of care required bly prudent of the employer is greater than that required of the employe, and the employer may be. chargeable w.ith negligence in failing to ascertain a danger, where the employe is not.
2.
SAME-ACTION BY SERVANT FOR INJURIES-ASSUMPTION OF RrSK.
'Where the manner o{using a machine with which an employe was required to work, and by which he was Injmed, appeared, in the light of facts disclosed after the .injury, on the trial of an action by the employe for damages, to have been obviously dangerous, put the question of its safety had been called. to .the attention of the employer, who continued the use, and the machine had been so operated for some time without injury to anyone, tile question of whether the employe, 'who was a common laborer, had assumed the risk, was one for the jury.'
In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Ohio. This was a suit at law for damages for personal injury. plaintiff was employed by the defendant, a corporation engaged in the manufacture of cast-iron pipe. The pipe is made by pouring the molten metal into a mold. The mold Is made by sinking a hole deep into the ground, lining it properly, and then inserting in this hole a heavy core. The core is removable. It is
JAMES B. CI,OW & SONS V. BOLTZ.
573
cylindrical in form, and hollow, with short projections or lugs at each end, upon which it is hung or steadied. The core is bound round with hay, which .js, in turn, covered with mud, and baked in an oven. It has to be removed from the oven to the pit, and back again, at short periods of time. It is carried on a car running upon a railway track about 35 feet long. The inj ury to the plaintiff was ocea sioncd by the falling of one of these cores from the .car or truck, upon which it was being carried, onto the shoulders and back of the plaintiff. The cores vary in size according to the size pipe to be made. The core which fell in this instance was a core for a 24-inch pipe. '1'he truck upon whicb the core was carried was made to carry two 36-inch cores and two 20-inch cores. The cores were about 14 feet in length. The truck was a rectangular iron frame, made of railroad iron, on four Wheels. At each end was a framework or rack supporting the two 36-inch (."Ores, and on this rack, and rising above it, were two standanls, supporting the two 20-inch cores. The 36-inch cores were on the outside of the cal', while the 2O-inch were in between the two 36-inch cores. but above them. The racks were not pivoted to the cars, nor the standards to the racks. The legs of the racks straddled the frame of the cars, and the legs of the standards straddled the frame of the racks. The 20-inch cores on the standards were about 6 feet from the ground, and weighed 3,000 pounds each. The bases of the standards were broader than theil' tops, which had grooves. into which the axial lugs of the cores fitted somewhat loosely. The standards had been made to carry but 20-inch pipe. They seem to have been strong enough to carry 24-inch pipe, but when 36-inch pipe were put upon the same car, which was but foUl' feet wide, it was found that the standards, if pushed close together, would not be far enough apart to calTY the 24-incn cores without chafing the surface of one against that of the other. As tilt' object of baking in the oven was to prevent this surface from abrading. it became necessary to prevent the two cores from rubbing together. Accord· ingly, with the knowledge and by the direction of the superilltPlldent and managers of the defpndant company's works, wedges were introduced undpl' the inner side of each standard, so as to topple the standard out a little from the perpendicular IiIH'. In that way, by using wedges on both standards of suttieient thickness. it was possillle to swing the :!4-ineh cores far enougll away from eaeh other not to rub. '1'he cores were loaded onto and off the ear lly means of cranes, after they had been properly prepared with ha3' and mud. The car was pushed up an ineline into the ovens. where the cores were baked, After they were suttieiently baked, the men OIH'l'ating the car. by means of hooks, pushed and pulled the car slowly down tlIe slightly inclined track to the pit. It was the duty of one of the men to pull, and at the same time to carry a wedge to put under the front wheel of the ear. to prevent its running into the pit. This duty was assigned to the plaintiff, John Boltz. He was a common laborer, who had worked in the foundry foJ' six months. He was sometimes called the "first laborer" of the gang. His duties were to assist in loading and unloading the cores, in pushing them in <'lend out of the oven, and in other common la.bor. '1'he gang was in charge of the core maker, who ",-as an expert in covering and baking the cores. The cal' had been used for six months, carrying eores for smaller-sized 11ipe. without any accident whatever. Allout eight days before til(' aeeident. however. heavy orders were received for 36-inch pipe; and, in ordpr to obviate the difficulty of the use of these cores with the 24-ineh cores on tile sallie ear, the wedg'es already spoken of were introduced. against the protl'st of the core maker, who said they were not safe. The core maker adjusted the wedges. The railway track consisted of two ordinary rails, 30 feet in length, supplemented by two rails 6 feet in length. At the joint of the long and short raj) on the west side there was a depression in the ground. so that one mil sat higher than the other, and gave a jolt to the passing ear. This defect was known to the plaintiff, but an attempt had lleen made to renwdy it by putting an iron plate underneath the joint to hold the two ends level. The great weight of the evidence seems to show that this joint was not the cause of the accident, but it was not of such a character as to justify the court in taking that issue away from the jury. The learrH'd trial jurlge delivered an elaborate charge, in which he made very clear distinctions between the lia-
-574
921!'EDERAL REPORTER.
the defendant to the plaintiff 1'01' negligence In the discharge of the <duties which the master owes to the servant, of furnishing reasonably safe . .a ppliances, tools, and machinery' with which to work, and the nonliability 'Of the master for injuries caused· by the negligence of the fellow servants M him who is injured. He left the question to the jury to say whether the ·car, as constructed, with the wedges,· was a machine which a l"easonably prudent emplo:yer would furnish to his servants to be used in ,his business. He further charged the jury that if the dangerous character of the machine was so obvious that an ordinarily intelligent laborer of the class of labol'ers to which the plaintiff belonged must or should have observed its danger, and the plaintiff nevertheless continued in the employ of the master without eomplaint, he assumed the risk incident to such employment, and was guilty ,of contributory negligence, should injury occur. He left the question to the jury, for them to decide, as follows: "And these are the questions for you to decide: (1) "Vas the unfitness and unsafety of this truck and these appU' ancf'S on this occasion, if you find them unfit, such a defect and danger as was known, or ought to have been Imown, to an ordinarily prudent and careful employer? (2) If you find that the employer was negligent in this regard, were the defects and danger of a character that an ordinarily intelligent employe should, under the circumstances, have known and realized them? If both these questions are answered in the affirmative, We plaintiff cannot recover. If the first be answered In the affirmative ilild the second in the negative, the plaintiff can recover. If both be answered In the negative. the plaintiff cannot recover,for then it ·would be one of those inevitable aeeidents for which nobody was responsible." '1'here were other questions arising in the ease, but they were of such minor importance that the court did not think it necessary to consider them.
Wilcox & Friend, for plaintiff in error. J. F. 'Wilkin and James :M:. Williams, for defendant in error. Before TAFT and LURTO:N, Circuit Judges, and SEVERENS, District Judge. 'L'AFT, Circuit Judge (after stating the f::"cts as above). The law governing the reciprocal duties of employer and employe with ref· erence to the safe condition of the place where the employe is to work, or of the machinery and tools with which he is to do his work, is well settled. It is the duty of the employer to exercise ordinary care to provide and maintain a reasonably safe place in which the employe is to perform his services, so that the employe shall not be exposed to unnecessary and unreasonable risks. The employe has the right to presume, when directed to work in a particular place, that reasonable care has been exercised by his employer to see that the place is free from danger, and, in reliance upon such presumption, may discharge his duties in such place, unless there are obvious dangers which would lead a reasonably prudent employe either to refuse to work in the place, or to make complaint of the same to his master. If, however, the danger is not actually known to the employe, or would not become known to an employe of reasonable prudence performing the duties imposed on him, he eannot be charged with contributory negligence in the happening of an injury to him by reason of the condition of the place in which he works. Norman v. Railroad Co., 22 U. S. App. 505, ]() C. C. A. 617, and 62 Fed. 727. In the case last cited, we referred to the clear and comprehensive statement of the law by Judge Sanborn, speaking for the Eighth circuit, in the case of Ba!lwaJ Co. v. Jarvi, 10 U. S. App. 439, 448, 3 C. C. A. 436, and 53 Fed. 68. In that case the
JAMES B. CLOW & SO!\S V. BOLTZ.
575
plaintiff was a miner, who was injured by the falling of a large stone from the roof of a mine; and the question was whether the plaintiff had been reckless, in not knowing or discovering the dangerous condition of the roof fl'om whieh the stone fell. 'rhe learned judge, speaking of the obligation of the servant, said: "He eannot reeklessly expose himself to a known danger, or to a dang'pr which an ordinarily prudent and intelligent man would, in his situation. haye apprehended, and then reeoyer of the master for an injury which his own recklessness has caused, * * * But the degrees of eare in the use of a place in which work is to be done, 01' in the use of other instrumeutalities for its performance, required of the master and seryant in a partieular case, may be, and generally are, Widely different. Baeh is required to pxercise that degree of care in the performance of his duty whieh a reasonably prudent person would use under like cirenmstanees; but the eireull1stnnces in which the master is plaeed are generally so widely different from those surrounding the servant, and the primary duty of using care to furnish a reasonably safp place for others is so mueh higher than the duty of till' servant to use reasonable care to proteet himself in a case where the primary duty of providing a safe place or safe machinery rests on the mastel', that a reasonably prudent person would ordinarily use a higher degree of care to keep the place of work reasonably safe, if plaeed in the position of the master who furnishes it, than if placed in that of the seryant who occupies it."
'1'he only point upon which we feel the slightest doubt in this case al'ises upon the Illotion which was made by the defendant, at the close of the plaintiff's evidence, to take the case away from the jury and direct a vel'dict fOr' the defendant, on the ground that the plaintiff must have known the dangers incident to the use of the machine from the use of which the injury happened, and must therefore have assumed the risk. Now that the accident has happened,now that the measurements are given, now that the weight of the cores is accurately known, now that the narrow range of the point of equilibrium in the with the use of the wedges, is clearly shown, it may be difficult to understand how anyone with the slightest knowledge of mechanics could fail to appreciate the dangers arising from the use of this car with the cores adjusted as they were. But it must be borne in mind that the plaintiff was a common laborer, that the question of the safety of the machine had been brought to the attention of the superintendent and managers of the foundry, that the car had been operated for six months without injury, and that the plaintiff had a right to assume that his master would exercise due care in his behalf in keeping the machinery and appliances safe. In the light of these considerations, we cannot say that the question of plaintiff's negligence, or the question of the amount of risk which he assumed, was not a question for the jury. It was left to them, with the proper and discriminating statements of the law, and applications of the law to the facts. The jury found that the circumstances were such that he was not charged with the knowledge of the danger incident to the use of that machine. We do not think the course of the court, in leaving this issue open to be settled by the jury, was erroneous. It is argued further that the plaintiff was guilty of negligence in running by the side of the car at the time of the injury,-a place from which he had been warned by his superior, it was said. The question whether he had been warned from this place, and whether
576
it was negligence in him to be there, and, indeed, whether it was not necessary, in the discharge ·of his duty, that he should be there, were all left to the jury by proper charges of the court. The judgment of the circuit court is affirmed.
FIDELITY TRUST & SAFETY-VAULT CO. OF LOUISVILLE v. LAWHE:\'OE OOUNTY, TE:\':\'. (Circuit Court of Appeals, Sixth Circuit. No. 627. STATUTES - EFFECT OF NEW CONSTITUTION TO PURCHASE RAILROAD STOCK. POWER OF TENNESSEE OOUNTIES
Const. Tenn. 1870, art. 2, § 29, contains a provision that no county or municipality shall become a stockholder with others in any corporation except after an election, and upon the assent of three-fourths of the voters participating. Article 11, § 1, continues in force all laws not inconsistent with tile provisions of such constitution. Laws Tenn. 185152, c. 191, ,authorized certain counties to subscribe to the stock of railroa(l companies bUilding therein upon the affirmative vote of a majority of the voters. Beld, that the constitution of 1870 did not operate as an amendment of such statute by substituting a three-fourths for a majority vote in its requirements, but that the statute was by implication repealed by the constitution as inconsistent with Its provisions, and that, it having been held that the constitutional provision was only a limitation on the powers of counties and municipalities, and not a grant of power, no authority existed in such counties, in the absence of subsequent legislation conferring It, to issue bonds for stock in a railroad company.
In Error to the Oircuit Oourt of the United States for the Middle District of Tennessee. This is an action at law to recover $5,800, the amount of certain coupons of a series of $50,000 o,f bonds Issued in 1882 by Lawrence county, Tenn., to the Nashville & Florence Railroad Compan3', In payment of a subscription for a like amount of stock to aid In the construction of a railroad passing through the county. The defendant demurred to the declaration on the ground that It appeared therefrom that the defendant had no power to issue the bonds, coupons of which were in suit. The circuit court sustained the demurrer, and, the plaintiff. not wishing to plead further, a judgment was entered for the defendant on the demurrer. The declaration averTed that the county court of Lawrence county by regular proceedings submitted to the qualified voters of the county a propoe1tion to subscribe for $50,000 of the capital stock of the railroad comp,any, to be paid in the bonds of the county at par, 30 years from date, bearing 6 per cent. Interest, payable annually; that upon this proposition an election was held, and more than three-fourths of the votes cast were in favor of the subscription; that the subscription was made, stock was issued to the county, and bonds were Issued therefor, payable to the Xashville & l!'lorence Railroad Company, or bearer; that said company sold all of them on the market, and applied the proceeds to the construction of said railroad in Lawrence county; and that the bonds. w'ifhsald coupons attached, came Into the possession of plaintiff, In due course of business, for a valuable consideration. The declaration avers that therallroad company 'Is now being operated through Lawrence county and other counties In Tenne:ssee. The declaration makes profert of all the proceedings in the county court, avers their regularity, and alleges that for 13 years the county has recognized the bonds, paid interest upon them, and has paid $1,000 of the bonds. The legislative authority to issue the bonds Is claimed by the bondholderS! to exist by virtue