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FURNISHING FOR SERVANT'S USE ARTICLE IN GENERAL USE AS MEASURE OF MASTER'S DUTY.

Opinion is irreconcilably divided upon the question whether or not a master, in furnishing appliances for his servant's use, has fulfilled his duty in that regard by furnishing those which are ordinarily used in the business.

Perhaps a majority of the courts have adopted a rule which may be thus expressed: Where the only inference that can reasonably be drawn from the evidence is, that the master has conformed to the general usage of the business in respect to furnishing instrumentalities for the servant's use, he should, as a matter of law, be declared to have been in the exercise of due care, and accordingly guiltless of negligence. Other courts refuse to agree with this proposition, and have declared that the custom shown must be the custom of well regulated and prudent con

cerns.

Other courts, and this would seem to be better founded in reason and justice, have declared the correct rule to be that the mere fact that the instrumentality in question has been commonly adopted by employers in the same business is not conclusive upon the question of negligence, though it is a circumstance to be considered in determining that question. Mere usage, these courts say, should not be per

mitted to establish that that which is in fact unnecessarily dangerous was in law reasonably safe as against persons towards whom there was a duty to exercise due care. That is to say, if the custom itself is negligent, it is not to be considered an excuse. That proof of a custom in well regulated concerns may be proven as tending to prove that due care was exercised in the particular instance, but that it is not conclusive upon the question and is to be considered by the jury, along with the other evidence, in determining the question of negligence or lack of negligence upon the part of the master.

Considering the first doctrine, that compliance with usage is conclusive of the lack of negligence on the master's part, we find the rule expressed in language, which if taken literally, would imply that the generality of the usage and the similarity of the business are the only points to be considered, and that the manner in which the business is conducted, and the character of the persons engaged therein are not material.

A leading case upon this question is Titus v. Bradford, B. & K. R. Co.,1 which was an action for the death of a brakeman and in which the negligence charged was the use of a broad gauge car body upon a narrow gauge truck. The court in discussing the duty of a master as to articles furnished for the servant, used the following language: "All the cases agree that the master is not bound to use the newest and best appliances. He performs his duty when he furnishes those of ordinary character and reasonable safety, and the former is the test of the latter; for, in regard to the style of implement or nature of the mode of performance of any work, 'reasonably safe,' means safe according to the usages, habits, and ordinary risks of the business. Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger, but of negligence; and the unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same, and however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way for which liability shall be imposed. Juries must necessarily determine the responsi

517.

(1) 136 Pa. 618, 20 Am. St. Rep. 944, 20 Atl.

bility of individual conduct, but they cannot be allowed to set up a standard which shall, in effect, dictate the customs or control the business of the community." And in Demers v. Marshall, in which it appeared that the plaintiff was injured by his clothing catching in a set screw, the court, in declaring the defendant free from negligence, said that, although it appeared that the projecting set screws had been going out of use on account of safer substitutes, and had not been commonly used in establishments lately constructed, the evidence fell short as a whole of showing that they were not still commonly used for holding collars and pulleys on the shaft, and were not a well-recognized device for that purpose. In Bohn v. Chicago, R. I. & P. R. Co., in which it appeared that the injury sued upon was caused by the breaking of a prize pole which the plaintiff and other servants of the defendant were using to raise a broken turntable, the court said: "No inference of negligence can arise from evidence which shows that the implement was such as is ordinarily used for like purposes by persons engaged in the same kind of business." In Worheide v. Missouri Car & Foundry Co., in which it appeared that the plaintiff's injuries were received while employed in defendant's car shops, and were caused by the tipping over of two loaded trestles, the court said that a master was under no obligation to reject all appliances employed by him at once, because others were employing appliances safer in construction; and that much less was he required to do so when it was shown that similar appliances to his were used in similar establishments, and it was not shown that other and better appliances were in common use. In Tompkins v. Marine Engine & Mach. Co., in which the plaintiff received his injuries while setting a tool in a rail planer which he operated, and the negligence alleged was the fur

(2) 178 Mass. 9. 59 N. E. 494. (3) 106 Mo. 429, 17 S. W. 580.

nishing him a steel hammer for the purpose, the court said: "The steel hammer clearly appearing by the testimony to have been in common and ordinary use in the adjusting of the tools in the planer, the defendant in no wise failed in his duty to the plaintiff by its use." For cases to the same effect see those cited in the note."

As to the second doctrine mentioned above, namely, that proof of a custom in well-regulated and well-conducted concerns is necessary to show conclusively that there was a lack of negligence on the master's part and that mere proof of custom is not sufficient, the following cases may be noted. In Briggs v. Chicago & N. W. R. Co.," in which the plaintiff alleged that her intestate, a fireman, had been killed through the negligence of the railroad company in failing to furnish a certain locomotive with a suitable pilot, it is said to be a general rule that a railroad company was not required to use upon all of its cars the safest possible appliances, or those of the latest and most approved pattern, but was at liberty to make use of such appliances as were at the time in general use on other well managed railroads, and were of the kind regarded as reasonably safe; and the court refused to find the defendant guilty of negligence where it appeared that pilots, such as the locomotive in question was equipped with, were in general use, and were the only ones that could be successfully employed under the conditions in which this engine was used. So, in Georgia P. R. Co. v. Probst, in which it appeared that the plaintiff, a brakeman, received his injuries while coupling cars, it was held that, if the coupling appliances used by the defendant were such as were employed by many wellconducted roads, this would repel all im

(6) Wabash Screen Door Co. v. Black, 126 Fed. 721; Louisville & N. R. Co. v. Allen, 78 Ala. 494; Sappenfield v. Main Street & Agri. Park R. Co., 91 Cal. 48, 27 Pac. 590; Davis v. Augusta Factory, 92 Ga. 712, 18 S. E. 974; Camp Point Mfg. Co. v. Ballou, 71 Ill. 417; Carey v. Boston & M. R. Co., 158 Mass. 228, 33 N. E. 512; Shadford v. Ann Arbor R. Co., 121 Mich. 224, 80 N. W. 30.

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putation of negligence, though other roads, "even a majority of them," adopted a different pattern. In Chicago & G. W. R. Co. v. Armstrong, in which the plaintiff, a brakeman, was injured by falling from a moving train, due, as was alleged to the fact that a hand-hold of a freight car was placed the wrong way, the court refused to find the railroad guilty of negligence where it was shown that hand-holds running the same way as the one in question were in common use. The rule was laid down that a reasonably safe method of the construction of cars meant one safe according to the uses, customs and ordinary risks of the business; that an employer was obliged only to conform to the rules and uses which prudent and careful men had established in the conduct of a similar kind of business under similar circumstances. The same rule was held to obtain in Boyle v. Union Pac. R. Co.,10 in which the plaintiff was injured, as alleged, through the inefficiency of a brake on the car, the rule was expressed in the following language: "The master is required to supply the same kind of appliances, or appliances equally as safe, as those in general use by men of ordinary prudence who are engaged in the same kind of business."

If the master is to be excused from negligence by furnishing for his servant's use appliances which are ordinarily used in the same business, or in well managed and well regulated concerns, under similar circumstances, it would seem that the converse of this proposition would be true, though it does not appear to the writer that either is sound, and the master be held negligent if he fails to furnish such instrumentalities as are in general use. In the cases discussed in the succeeding paragraph, such conclusion was reached.

In Richmond & D. R. Co. v. Jones11 in which the negligence alleged was the furnishing of a defective drawhead in the ten

(9) 62 II. 228.

(10) 25 Utah, 420, 71 Pac. 988. (11) 92 Ala: 218, 9 So. 276.

der of a certain locomotive, the court used the following language: "It is the duty of railroads to keep themselves reasonably abreast with improved methods so as to lessen the danger attendant on the service, and while they are not required to adopt. every new invention, it is their duty to adopt such as are in ordinary use by prudently conducted roads engaged in dike business and surrounded by like circumstances." The same was held in Richmond & D. R. Co. v. Weems, in which the negligence alleged was that a gudgeon pin in a derrick, by the breaking of which a plaintiff was injured, was too small, it was held that it would be negligence on the part of the the defendant if a pin of the size of the one in question was not used by many well-conducted businesses of that kind under like circumstances. In Sparks v. River & Harbor Improv. Co..13 in which the negligence alleged was in furnishing a certain valve on an engine, the defendant was held negligent in that he provided a valve which was not in common and ordinary use. So, in North Carolina it has been held that the failure of a railroad company to furnish automatic car couplers was negligence per se, which rendered such a company liable to an employee for injuries received in attempting to couple cars not so equipped.1 In Bennet v. Northern P. R. Co.,15 in which the plaintiff was injured while coupling a car to a locomotive, by being squeezed between the two, owing to the shortness of the drawbars, the court declared the jury justified in holding the defendant negligent when the evidence showed that each of the drawbars was much shorter than those in common use. So, in Cosselman v. Dunfee,10 in which the negligence alleged was the failure of the defendant to furnish a sufficiently strong hook to hold the bucket.

(12) 97 Ala. 270, 12 So. 186.

(13) 74 N. J. L. 818, 67 Atl. 600.

(14) Greenlee v. Southern R. Co., 122 N. C. 977. 41 L. R. A. 399, 30 S. E. 115; Troxler v. Southern R. Co., 124 N. C. 189, 44 L. R. A. 313, 32 S. E. 550.

(15) 2 N. D. 112, 13 L. R. A. 465, 49 N. W. 408. (16) 172 N. Y. 507, 65 N. E. 494.

used on a derrick, one of the elements relied upon in finding the defendant guilty of negligence was that the hook in general use. for such purposes was larger. To the same effect see McGar v. National & P. Worsted Mills.17

In the following cases, all of which are from jurisdictions in which the rule is that a master will not be held to be negligent if he furnishes for his servant's use instrumentalities generally used by other employers in the same business, the court merely held that evidence that the machinery used by the defendant was not such as was ordinarily used by other employers was admissible to show that the employer was negligent, but did not go to the length of holding it conclusive upon that question; though it does not appear from the opinions that such question was raised in the cases.18 In Wabash Paper Co. v. Webb,1o the court said: "The jury find, as the evidence also shows, that the paper mill and machinery were constructed and maintained after approved plans, of good pattern and design, of good material, adapted to the use for which they were intended, and such as are in use in the best paper mills. It is possible that the gearings, set-screws, pulleys, belts and other such exposed parts of machinery might be rendered more safe by being boxed. But well conducted mills are operated without this extra care; and if usual and ordinary care is shown in the procurement and maintenance of machinery. that is all that can be asked." The court held that as a matter of law the plaintiff was guilty of contributory negligence.

Some of the courts follow the third doctrine outlined and refuse to hold it conclusive of the master's lack of negligence if he supplies the ordinary instrumentalities, and have adopted the doctrine, which

(17) 22 R. I. 347, 47 Atl. 1092.

(18) Stover Mfg. Co. v. Millane, 89 Ill. App. 532; Couch v. Watson Coal Co., 46 Iowa, 17; Anderson v. Ill. C. R. Co., 109 Iowa, 524, 80 N. W. 561; Myers v. Hudson Iron Co., 150 Mass. 125, 15 Am. St. Rep. 176, 22 N. E. 631; Belleville Stone Co. v. Comben, 61 N. J. L. 353, 39 Atl. -641. Affirming 62 N. J. L. 449, 45 Atl. 1090. (19) 146 Ind. 303.

is more in consonance with our institutions, that such fact is mere evidence to be considered by the jury in determining whether or not the master has fulfilled his duty towards his servant in furnishing him. appliances for his use. The court in Monson v. Crane,20 said: "An employer is not as a matter of law negligent if he fails to adopt every new device or apparatus which is recognized as a proper improvement upon his machine. It is for the jury to determine whether the particular instrumentality, in the condition in which the evidence shows it to be, is or is not reasonably safe, and, to aid them in determining this fact, they have the right to consider whether there are well known devices in general use, which, if adopted, would have reduced the danger to the employee. It is not the employer's duty to furnish any particular kind of tools, implements or appliance. Failure to conform with common usage is not negligence as a matter of law. It is merely to be considered by the jury. He is not required to provide machinery similar to that used in other establishments, although it may be less dangerous than that used by him. Whether that which is furnished by him is reasonably safe is to be determined by its actual condition, and not conclusively by comparing it with other machines used by others for similar work." To the same effect, see Stiller v. Bohn Mnfg. Co.21

This rule necessarily leads to the conclusion that the fact that the appliance is in general use throughout the country in the same or similar lines of work is not conclusive upon the question of negligence if in fact the master has not used proper care in its selection and it is not reasonably safe. In Anderson v. Fielding, the court said: "The law of this state is that a negligent act will not be excused by the fact that it is customary. Proof of custom, however, is evidence, but not conclusive as to whether the act is negligent. This

(20) 99 Minn. 188, 108 N. W. 934. (21) 80 Minn. 1, 82 N. W. 981.

(22) 92 Minn. 42, 104 Am. St. 665, 99 N. W. 357.

rule applies to the act of selecting and furnishing tools and appliances for the use of employees."23 General custom is not as a matter of law due care.24 As said by Mr. Justice Holmes: "What usually is done may be evidence as to what ought to be done; but what ought to be done is fixed by a standard of reasonable prudence, whether it is usually complied with or not."25 The master is not, therefore, required to adopt every new device by way of improvement upon the appliances furnished by him to his men. It is sufficient if such as are supplied are reasonably safe. But, as said in Hoy v. Chicago, M. & St. P. R. Co.,26 "Reasonable care is all that is required. But this must be proportionate to the risks to be apprehended and guarded against." The degree of care must be commensurate with the dangerous character of the article, the circumstances under which it is used, and the seriousness of the dangers to be anticipated. Reasonable care may thus under certain circumstances be the highest degree of care.27 The Indiana Supreme Court said in Lake Erie & W. R. Co. v. Mugg,28 that: "Ordinarily, a master will not be permited to show, as a defense to an action by an employee for not furnishing reasonably safe or suitable machinery, or a reasonably safe place for its employees to work, that it was the general or universal custom of other masters to furnish defective implements, or an unsafe place to work." It does not appear why it should ever be permitted. The Indiana courts attempt to distinguish and hold that some cases are for the jury and other cases for the court to decide. In Baltimore & Ohio, etc., R. Co. v. Leath

(23) Craver v. Christian, 36 Minn. 413, 1 Am. St. Rep. 675, 31 N. W. 457; Hinton v. Eastern R. Co., 72 Minn. 339, 75 N. W. 373; Attix v. Minn. Sandstone Co., 85 Minn. 142, 88 N. W. 436.

(24) Wabash R. Co. v. McDaniel, 107 U. S. 454, 2 Sup. Ct. Rep. 932.

(25) Texas & P. R. Co. v. Behymer, 189 U. S. 470, 23 Sup. Ct. Rep. 622.

(26) 46 Minn. 269, 48 N. W. 1117.

(27) Wiita v. Interstate Iron Co., 103 Minn. 303, 115 N. W. 169.

(28) 132 Ind. 168.

ers,20 the court said: "It is the duty of the master to provide his servants with reasonably safe places in which to work, and suitable and reasonably safe appliances with which to work. Nor can the courts as a general rule determine what particular form or kind of machinery and appliances, or the manner of their construction, which the master must provide for his servants. There may be cases in which the court may rule as a matter of law that certain appliances and the manner of their construction are reasonably safe or unsafe, and that the master is or is not negligent in providing them. But between these two extremes there is a large number of instances in which the negligence or want of negligence of the master in providing given appliances is a question for the jury." A leading case holding that it is a question for the jury is Geno v. Fall Mountain Paper Co.,30 in which it appeared that the plaintiff received his injuries by having his clothing caught in a set-screw. It was held that the fact that the appliance was in common use tended to show that the master was not guilty of negligence in providing it for the use of his employees, but was not conclusive upon that proposition. The proper test was said to be, Would a reasonably prudent man furnish it under the circumstances? To quote from the opinion: "The doctrine of 'common use,' 'the ordinary usage of the business,' as one of general application, we are not inclined to adopt, though it might apply to the facts in a given case. We think the more reasonable rule is to require the employer, in the selection and setting. of machinery, to use the care of a prudent man in like circumstances. If a machine or appliance were not such as would commend itself to the judgment of a prudent man, and an injury occurred from its use, it ought not to be a defense to say that it is one of a kind in common use. It cannot always be assumed that machines in common use would meet the approval of prudent men. They might remain, and often do

(29) 12 Ind. App. 544, 548. (30) 68 Vt. 568, 35 Atl. 475.

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