Brymer v. Southern Pacific Co.

Paterson, J. — Appellant received bodily injuries while engaged with others in the employ of defendant, under the directions of a superintendent, in raising a derailed and wrecked car. He alleged that the injury occurred through the use of inadequate, inappropriate, insecure, and defective appliances furnished by defendant without proper care and caution in the selection thereof, and through the negligence and unskillfulness of the superintendent who was engaged in directing the work on behalf of defendant.

The defendant asked the court to give the following instruction, which was refused: —

“As respects the duty of a master or employer toward [498]his servant or employee in his service, the court instructs the jury as a matter of law that the master or émployer is not bound to provide machinery or appliances which are absolutely safe. The law imposes on the master or employer only the obligation to use reasonable and ordinary care, skill, and diligence in procuring and furnishing suitable and safe machinery and appliances for the servant to perform the duties for which he is engaged. The master does not stand in the relation of an insurer to the servant against injury, and can only be held chargeable when negligence can be properly imputed to him. The mere fact that an accident occurred by which the plaintiff was injured does not fix the liability, or even raise a presujnption that the defendant was at fault in providing machinery or appliances for the labor in which the plaintiff was engaged.”

The defendant moved for a new trial, and the motion was granted on the ground that the court had erred in refusing to give the instruction above quoted.

We think the instruction ought to have been given.

When the employer exercises all the care and caution which a prudent man would ordinarily take for the safety and protection of his own person under the same circumstances, he cannot be held liable for the consequences of a defect in the machinery or appliances used. This is the sense in which the expression “reasonable and ordinary care, skill, and diligence in procuring and furnishing suitable and safe machinery and appliances” was used in the instruction asked, as we understand it; and is equivalent to the rule as stated in many of the authorities; viz., that the employer is liable only when he had knowledge of the defect, or failed to exercise reasonable diligence in procuring suitable machinery, or in the inspection of it to discover any defect that might exist. (Bajus v. Syracuse etc. R. R. Co., 103 N. Y. 312; 57 Am. Rep. 723; Lake Shore etc. R. R. Co. v. McCormick, 74 N. Y. 440; Devliny. Smith, 89 N. Y. 470; 42 Am. Rep. 311;