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Same-Duty of Employer-Existence of Better Appliances.—Where the master has furnished machinery which is in general use for the purpose to which it is intended to be applied and which is generally regarded as reasonably safe if prudently used, he is not liable for injury to his employe arising from the use of such machinery, although better appliances may exist. Lehigh & W. Coal Co. v. Hayes, Pa. Sup. Ct., Oct. 7, 1889. GREEN, J., who delivered the opinion of the court, said: “The rule in regard to the obligation of the employer, respecting the character of the tools and appliances furnished by him, has been repeatedly stated in the recent decisions of this court. Thus, in Pittsburgh & C. R. Co. v. Sentmeyer, 92 Pa. St. 276, 5 Am. & Eng. R. Cas. 508, we said that, when the employer furnished his employes 'with tools and appliances which, though not the best possible, may, by ordinary care, be used without danger, he has -discharged his duty, and is not responsible for accidents.' In Payne v. Reese, 100 Pa. St. 301, we said: 'An employer is not bound to furnish for his workmen the safest" machinery, nor to provide the “ best methods” for its operation, in order to save himself from responsibility for accidents resulting from its use. If the machinery be of an ordinary character, and such as can, with reasonable care, be used without danger to the employe, it is all that can be required from the employer. This is the limit of his responsibility, and the sum total of his duty.” In Allison Manuf'g Co. v. McCormick, 118 Pa. St. 519, we said : • The general rule requires of the master that he provide materials and implements for the use of his servant such as are ordinarily used by persons in the same business; but he is not required to secure the best known materials, or to subject such as he does provide to a'chemical analysis in order to settle, by experiment, what remote and possible hazard may be incurred by their use.' In Delaware Riv. I. Ship Building Works v. Nuttall, 119 Pa. St. 149, we held that the employer was under no obligation to give warning to his employes of the dangerous character of a circular saw, or to provide it with a spreader to prevent accidents. As to the spreader we said : “ The testimony shows that such an attachment is not in general use, and that there is no general agreement among mill-owners or practical sawyers that it is a desirable or a useful attachment. It is not enough that some persons regard it as a valuable safeguard. The test is general use. Tried by this test the saw of the defendant is such a one as thecompany had a right to use, because it is such as is commonly used by mill-owners; and it was error to leave to the jury any question of negligence based on the failure to provide a spreader.'

Same-Evidence-Attaching Defective Car to Train.—Where a defective car has been attached to a train and there is nothing to show that it is different from other cars, and it became necessary to use the car in such a manner as to injure a brakeman who had no knowledge of its condition, there is prima facie evidence of negligence on the part of the company, although there is no proof that it had notice of the defect. Guthrie v. Maine Cent. R. Co., Me. Sup. Jud. Ct., June 5, 1889.

Same-Instructions as to Employer's Duty. In an action for damages for personal injuries, defendant requested the court to charge that “an employer does his duty when he provides for his employes in such manner as he fairly and reasonably deems prudent and safe, and if he furnishes appliances which, although not the best that can be obtained, yet may be used without danger, he has discharged his duty and is not responsible for accident or injury.” Held, that the charge was properly modified by substituting the words, "is fairly and reasonably prudent and safe," for the words, “ he fairly and reasonably deems safe,” and by saying that it was not what the employer decides might be prudent, “but what is, in point of fact, reasonable, prudent, and safe, that he is required to furnish.” Pittsburgh & W. R. Co. v. McCombs, Pa. Sup. Ct., Nov. 4, 1889.

41 A. & E. R. Cas.-23

Same--Instructions- Risk Assumed by Brakeman.—Plaintiff, a brakeman, sued to recover for injuries caused by a car on which he was at work leaving the track. The defendant requested the court to instruct the jury that if the accident was caused by the breaking of a rail the plaintiff could not recover, as the risk was one assumed by him as incident to his employment. Held, that the instruction was properly modified by saying“ unless the breaking of the rail was the result of the culpable negligence of the defendant." Pittsburgh & W. R. Co. v. McCombs, Pa. Sup. Ct., Nov. 4. 1889.

Same-Presumption of Negligence Arising from Happening of AccidentIt is error for the court to charge, in an action by an employe for damages for injuries received through the overturning of a car on which he was travelling, that while "the burden of proof is on the plaintiff to show negligence of the defendant, yet it is sufficient for that purpose prima facie if he show that he suffered injury without his fault while lawfully travelling in the car of the defendant, and that the cause of the injury was probably the negligence of the defendant,” and that “whether it is so or not is in the knowledge of the defendant, and the defendant must then show what the real cause of the injury was, and if the defendant does not choose to give the explanation, a jury will be authorized to find that the real cause of the injury was the negligence of the defendant in the particular case specified in the complaint.” Minty v. Union Pac. R. Co., Idaho Sup. Ct., March II, 1889.

Same-Presumption Instructions.—The presumption of negligence does not arise as between master and servant, from the occurring of an accident, and it is error for the court to charge " that if the car was overturned by reason of any defect in said car, or of the track on which it was running, this is of itself, presumptive evidence of negligence on the part of the defendant, and the burden is then on the defendant to show that there has been no negligence whatever.” Minty v. Union Pac. R. Co., Idaho Sup. Ct., March 11, 1889.

Same-Employe's Knowledge of Defect-Use of Switch-Engine Having Square Tank.–The negligence charged consisted in the use of a switch-engine, having a square tank instead of a sloping one; the latter being more suitable for switching purposes. The court refused to charge at the de. fendant's request that if there were any patent defects in the engine or tank, and deceased knew, or might by ordinary diligence have known of the same, and the said defects contributed to the injuries complained of, the jury should find for the defendants. Held, that as the evidence disclosed that the deceased could see that the engine had a square tank, but failed to show that he was aware of the different degrees of danger between the use of that and one with a sloping tank, or that he understood the nature of the danger to himself from the use of the square tank, the charge was properly refused, as the law charged him with knowledge only of such defects as were open to his observation. Missouri Pac. Ř. Co. v. Lehmberg, Tex. Sup. Ct., Nov. 8, 1889.

Same-Duty of Company as to Brake-Shoes.--A railroad company is, as in a question with its employes, only bound to furnish brake-shoes which are effectual for the purpose for which they are used, and although new brakeshoes are two inches in thickness and the brake-shoe which was alleged to have been defective and to have caused plaintiff's injury was only half an inch thick, the fact that the brake-shoe had been so worn is not sufficient to establish negligence on the part of the company in the absence of evidence to show that the brake could not be applied, or that when applied it was not so effective as it should have been, or would have been with thicker brake-shoes. Smith v. New York Cent. & H. R. R. Co., N. Y. Ct. App. Second Div., March 11, 1890.

Same-Province of Jury–Sufficiency of Evidence.—In an action for damages resulting from personal injury received by reason of the reverse lever of a locomotive becoming detached and changing the motion of the engine, and by which it was sent violently against a car upon which the plaintiff in the action was standing, a question was presented on the trial as to whether the lever became detached by reason of a defective construction of the "reverse lever,” “quadrant," and "dog," or by the want of care of the engineer. It was held, upon the evidence submitted, that the question was a proper one for the jury, there being some evidence of a defect in the operation of the machinery. Burlington & M. R. Co. v. Wallace, Neb. Sup. Ct., Dec. 17, 1889.

Same-Reverse Lever of Engine-Competency of Evidence of Defect.-A witness, who was a switchman, was called by the plaintiff in the suit for the purpose of showing a defect in the appliances used for the purpose of reversing the motion of the engine, and stated that to his knowledge the reverse lever of that engine had become detached on two other occasions, by which the control of the engine was temporarily lost by the engineer. Upon cross-examination he stated that he could not see the lever “fly back," but that upon each occasion he was with the engine, saw its movements, by which it refused to change its course, but accelerated its speed, at a time when not required, and demanded of the engineer the cause of the failure to follow his directions, when the engineer said, " It flies back." The trial court refused to strike out the evidence of the witness upon the motion of defendant. Held, no error and no prejudice. Burlington & M. R. Co. v. Wallace. Neb. Sup. Ct., Dec. 17, 1889.

Same-Opinion Evidence-Necessity of Safety Switch-Competency of Witness.- Where an action is brought to recover damages for the death of a railroad engineer, caused by an alleged defective switch, a person whose only employment about a railroad has been as fireman on an engine and as an operator of a coal-shovel, and who is not a civil engineer nor acquainted with railroad building, is not qualified to testify as an expert, as to the necessity of having a device known as a safety-switch at the place of accident. Ballard v. New York, L. E. & W. R. Co., Pa. Sup. Ct., April 29, 1889.

Same-Pleading-Sufficiency of Declaration to Support Verdict.—Where the plaintiff sues to recover damages from a railroad company for the killing of an employe, in consequence of its negligence in constructing its road, the fact that the declaration does not state that the defendant knew of the defect in the road, or that the plaintiff did not know of it, does not render it insuficient to support a judgment in favor of the plaintiff. Chicago & E. I. R. Co. v. Hines, Ill. Sup. Ct., March 29, 1890.

Same--Pleading—Amendment-Statutory Cause of Action.—Where the plaintiff, in an action to recover damages for injuries caused by defective materials knowingly furnished by his master declared on the common law liability of the employer, an amendment alleging a right to recover under a statute introduced a new cause of action, although the facts set out in the common law declaration are sufficient to sustain the right of action under the statute, and such amendment cannot be permitted. Bolton v. Georgia Pac. R. Co., Ga. Sup. Ct., Nov. 11, 1889.

Same-Instructions as to Duty of Company. -Plaintiff sued for injuries sustained while engaged in uncoupling cars, by his foot becoming fastened between the guard rail and track rail, and by being run over by a car. The court instructed the jury as follows: “(2) Railways are not bound to their employes to provide the best possible appliances, but they are bound only to supply such appliances as are in common use by well managed railways, and which they have skillfully constructed and carefully maintained in repair. They are bound to furnish such appliances as are reasonably safe and suitable, such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances." * (12) If the tracks, switch, and guard at the place of the injury were in ordinarily good condition as to safety and fitness, as defined in section 2 of this charge, then the plaintiff cannot recover.” Held, that the instructions were such as to justify the jury in believing that more than ordinary care was required of a railroad company to furnish reasonably safe appliances for the performance of employes' duties, and that they were erroneous. International & G. N. R. Co. v. Bell, Tex. Sup. Ct., Nov. 5, 1889.

Same-Instructions—Duty to inform Employe of Danger.- Plaintiff was hired as a plumber, and when not so engaged he was to make himself generally useful about the shops of the company. Whilst assisting in taking a locomotive to the round-house, he was directed to block the locomotive with a railroad tie and was injured in consequence of the use of the tie. Defendant requested an instruction that it was only bound to use ordinary care in furnishing safe implements and appliances to its servants; that it was only required to use those in ordinary use in and about its workshops and yards; and that unless other more suitable and safe implements were in use by railways, the plaintiff could not recover. Held, that it was error to so instruct the jury, as the instruction implied that the tie was an implement in general use for the purpose to which it was applied, and exonerated the company from liability on the ground that it had no better implement, and also ignored the defendant's duty to inform plaintiff of the danger arising from the use of the tie, which he could not be presumed to know. Texas M. R. Co. v. Douglass, Tex. Sup. Ct., March 19, 1889.

Same-Instructions—Experience of Employe.—Where the plaintiff sues for personal injuries sustained by him while in the employment of the defendant, and the jury has been instructed as to the question of his experience in the use of the appliances furnished to him, an instruction that the plaintiff must show that the injury was the immediate result of the negligence of defendant's agent “in directing plaintiff to use said implement in an unskillful and dangerous manner, the plaintiff himself being inexperienced in the work * * and by reason thereof was ignorant of the danger," is not open to the objection that it assumes that the plaintiff was inexperienced, and thereby infringes upon the province of the jury. Texas M. R. Co. v. Douglass, Tex. Sup. Ct., March 19, 1889.

Same--Instructions—Assumption that Engine Defective.—Where plaintiff sues for damages for negligently causing the death of her husband, who was run over by a switch engine, an instruction that if the jury believed that the injury was caused both by the defective construction or unfitness of the engine for the purposes for which it was then used, and the negligence of the engineer and yard foreman, combined with said defect in engine, the defendant will be liable, does not assume that the engine was defective and unsuitable, nor is it a charge upon the weight of the evidence and is not open to objection on these grounds. Missouri Pac. R. Co. v. Lehmberg, Tex. Sup. Ct., Nov. 8, 1889.

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GRUBE

V.

MISSOURI PACIFIC R. Co.

(Missouri Supreme Court, June 10, 1889.) Municipal Ordinances—Applicability to Yards of Railroad Company.-Municipal ordinances limiting the speed of trains within the city limits, and requiring lights to be displayed when moving at night, apply to the movement of cars in the yards of a railroad company.

Master and Servant-Selection of Foreman-Reputation of Unfitness.—To show a want of reasonable care in selecting a fit and competent person to act as foreman, and in retaining him in service, it is competent to put in evidence, not only his general reputation of unfitness for the duties assigned to him, but also specific acts of negligence, or of incompetency, with evidence of knowledge thereof on the part of the master.

Same-Contributory Negligence-Sufficiency of Instruction.-An instruction in an action for damages which directs a verdict for the plaintiff, if the facts therein stated be found to be true, and the deceased was injured " without negligence on his part directly contributing thereto,” is not open to the objection that it ignores the question of negligence on the part of the deceased, when the jury are instructed that the plaintiff could not recover if deceased was guilty of negligence, or if he knew, or by the exercise of care, might have known, that the person through whose negligence the accident occurred was an incompetent or negligent foreman and he thereafter continued in defendant's employ.

APPEAL from Circuit Court, Cass County.
T. J. Portis and Adams & Bowles for appellant.
Prosser Ray and L. E.Wyne for respondent.

BLACK, J.-The plaintiff is the widow of Frank T. Grube. She brought this suit to recover damages for the death of her husband, who was injured in the defendant's switch

Case stated. yards at Kansas City on the 20th November, 1883, and from which injuries he died two or three days later. There was a verdict and judgment for plaintiff, and the defendant appealed.

There are some facts set out in the petition, disclosed by the evidence on both sides, and about which there is no dispute, and they are, in substance, these: The accident occurred between half past 6 and 7 o'clock in the af

Facts. ternoon, on side track No. 6. It was dark at that time. The switch tracks run in an east and west direction, and No. 6 is a short track, just to the north of a main switch track. The water plug and coal chutes are on the west end of No. 6. It was the duty of the switch crews to go on this

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