Hayzel v. Columbia Railway Co.

delivered the opinion of the Court:

There are six assignments of error, but they are reducible to four, inasmuch as the third and fourth involve precisely the same question of law, and the sixth is not different from the fifth.

*3691. The first assignment is addressed to the ruling of the trial court, whereby the question was excluded which was put to the plaintiff by his counsel as to his experience in coupling cars, and as to the coupling apparatus which had been used on the cable cars and on the open summer cars. The theory, on which the proposed testimony is sought to be introduced, is plainly inadmissible. It would require a street railroad company to open a school of technology for its employees. The objection to it, to the effect that, when a man of mature age offers himself to pursue a particular employment, and by his offer represents himself to have the necessary experience for it, he cannot afterwards be heard to say that he should have been instructed by his employer in the performance of his duties, is so plainly the dictate of reason and common sense that elaboration of the subject would seem to be wholly unnecessary. It should be said that, neither in the brief nor in the oral argument for the appellant, does this point appear to be seriously, if at all, insisted on. And the same statement may be made in regard to the second assignment of error.

2. This second assignment of error refers to a conversation between the witness King and an official of the railway company, or rather to a remark which King claims to have made to the official long before the time of the accident, to the effect that the coupling appliance in question was dangerous, and the avowed purpose of the proposed testimony was to show that the attention of the company had been called to its dangerous character. Apart from any other objection to this testimony, it is very plain that it was inadmissible upon one ground, if for no other, that it did not appear that the official mentioned had any control over the equipment or management of the cars of the company. He may have been, for all that the record discloses to us, the secretary or treasurer of the company, having no charge whatever of the construction or management of the cars.

3. The third and* fourth assignments of error, which are to the same effect, that is, addressed to the ruling of the court which, on rebuttal, excluded testimony to the effect *370that, when the draw-bars of street cars are properly supported by a stout piece of iron, they will couple automatically, notwithstanding lateral or perpendicular variations in the height of the cars, we can not regard as well founded in law. The whole theory of the plaintiff’s case was that from a piece of machinery otherwise safe there had been negligently and improperly omitted a stout piece of supporting iron which would have enabled the automatic coupler to act efficiently. To this effect was the testimony in chief adduced on behalf of the plaintiff; and we are unable to see wherein this proposed testimony in rebuttal differs from the testimony in chief. But of these two assignments of error it may be remarked, as it was remarked of the first and second, that they are not strenuously insisted on by the appellant.

4. The substantial question in the case is that raised by the fifth and sixth assignments; that is, whether upon the testimony there was any issue proper to be submitted to the jury. And we think that this question also was properly determined by the trial court.

The law of negligence, and of contributory negligence, and of the extent of the employer’s liability to his employees, would now seem to be well settled for us by repeated decisions of our court of last resort. And that same high tribunal would seem also to have settled, as far as human language can settle it, the condition in which a trial court may peremptorily instruct a jury to return a verdict in favor of a defendant. It is unnecessary to repeat here the enunciations of the Supreme Court of the United States on this point. That has been repeatedly done in former decisions of this court, and by the Supreme Court itself in its later adjudications. It would appear that all that remains to be done is to apply the well-established doctrine in each particular case as it arises.

The record before us develops the case of an employee suing his employer for alleged negligence on the part of the latter in having on the car which the employee was charged to operate an unsafe appliance for the coupling of cars, as *371set forth in the first count of the declaration, or a safe appliance in bad condition, as stated in the second count of the declaration, all unknown to the plaintiff. The testimony of the plaintiff himself shows conclusively by his own admission that he knew of the defect, if defect it was, before the accident, and that he incurred the risk with full knowledge of the danger, and without any command or instruction to that effect from any officer of the defendant company. The rule of the company, which required the conductor of a car to use “ every means in his power to help to get the car in motion ” when it has been blocked, did not require him to put himself in a position of danger for that purpose. If it were to be construed that such was the requirement, it would also have to be held that by assuming the employment the plaintiff also undertook the risk. Whether he was warned of his danger in attempting to go between the cars, which was testified to by the two motormen and the conductor of the other car, and which was denied by himself, thereby raising a question of fact, which, if it stood alone, might properly have been left to the jury to determine, is of no consequence, since, under the ordinary rules of conduct that govern reasonably prudent men, and by the action of the two cars in the first attempt to couple them, he must have known that there was danger in going between them in the manner in which the plaintiff did and for the purpose for which he went. •

It is not entirely clear from the pleadings or the testimony whether the defect complained of as existing in the appliance was the substitution of a slight piece of iron in the place of a stout one to support the draw-head, or whether it consisted in the bent condition of the piece that was actually used. The first count of the declaration would seem to be based upon the first assumption. But the plain answer to this is that the plaintiff’s own witnesses show that appliances so constructed were in common use, and the law requires of employers only such appliances as are in common use. On the other hand, if the defect complained of was not in the iron piece that was used, but in the bent condition of that *372iron, it is not shown that the defendant had any knowledge of snch condition, or that there had been reasonable opportunity for such knowledge, and the plaintiff did become aware of it before the accident, as he himself admits.

It is argued, however, that the employee may .know the character and condition of the instrumentality which he is called upon tó use, and yet not have the means of knowing the nature and extent of the risks to which its use will expose him; and that in this regard the employer and the employee do not stand upon an even footing. This is the ruling of the Supreme Court of Michigan in the case of Hathaway v. Railway Co., 51 Mich. 253, wherein the same court in another sentence states the same doctrine in the same way, as follows: Although a servant may have Tcnown of the defects, this will not defeat his recovery unless he lenew that the defects rendered the thing dangerous.” This is undoubtedly wholesome doctrine; but we cannot see that it applies to the present case. Here the use of the appliance, defective though it may have been, could not have caused the plaintiff’s injury if he had not placed himself in a position of danger between the cars.

We fail to find in the record any evidence of negligence on the part of the defendant company. The act of the plaintiff, although well meant and inspired by a zeal to do his duty, was not the dictate of due caution on his part; and to his want of care and prudence the unfortunate accident must be attributed. In our opinion there was nothing in the ease to be submitted to a jury; and we think that the trial court, which was of the same opinion, was correct in so ruling and in directing a verdict for the defendant.

The judgment appealed from must be affirmed, with costs. And it is so ordered.