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Gibson v. The Pacific Railroad Company.

66

while leaving his master's employment without proper cause. master," says Lord CRANWORTH, "by the law of England and by the law of Scotlana, is liable for accidents occasioned by his neglect to those whom he employs." I quite adopt the argument of the solicitor-general, "that he is duly responsible while the servant is engaged in his employment; but then we must take a great latitude in the construction of what is being engaged in his employment;" and he further adds, that the liability of the master continues, “whatever he does in the course of his employment, according to the fair interpretation of the words eundo, morando redeundo; for that the master is responsible, and it does not, in my opinion, make the slightest difference that the workman had, according to the finding of the jury, no lawful excuse for going out, no lawful excuse for leaving their work." "The master," remarks Lord. BROUGHAM in the same case, "who let them down is bound to bring them up, even if they come on their own business and not on his; he is answerable for the state of his tackle by which the lamentable accident was occasioned."

In Byden v. Stewart, 2 McQueen, 30, the lord chancellor, among other things, said: "The law of both countries (England and Scotland) makes a master liable for accidents occasioned by his neglect toward his servants."

In the case of Dixon v. Rankin, 14 Court of Sess. Cas. 420, the Lord Justice CLERK held, that "the master of men in dangerous occupations is bound to provide for their safety. This obligation extends to furnishing good and sufficient apparatus, and keeping the same in good condition; and the more rude and cheap the machinery, and the more liable, on that account, to cause injury, the greater the obligation to make up for its defects by the attention necessary to prevent such an injury."

In Roberts v. Smith et al., 2 Hurl. & Nor. 213, the injury arose from a rotten and defective scaffold, over which the plaintiff, a bricklayer, was compelled to pass in the course of his employment; and, in consequence of its rotteness, it broke, and the plaintiff fell to the ground. The case decides the liability of the defendant if the injury arose from his negligence, he knowing the condition of the scaffold and the servant being ignorant thereof.

In Williams v. Clough, 3 Hurl. & Nor. 259, it was alleged in the declaration that the defendant was possessed of a granary, and ladder leading up to it; that the ladder was wholly unfit and unsafe

Gibson v. The Pacific Railroad Company.

for use; that the plaintiff was a servant, for hire, of the defendant; that the defendant, knowing the premises, wrongfully and deceitfully ordered the plaintiff to carry corn up the ladder into his granary; that the plaintiff, believing the ladder to be fit for use, and not knowing to the contrary, did carry corn up the ladder to the granary, and, by reason of the ladder being unsafe, the plaintiff fell from it, and was injured. It was held, on demurrer, that the declaration was sufficient. The American authorities are equally decisive.

In Mad River & Erie R. R. Co. v. Barber, 5 Ohio St. 541, the court says: "If the defects which caused the injury were actually unknown to the company or the conductor, and were not discoverable by due and ordinary care and inspection, and yet were such as resulted from a neglect of reasonable and ordinary care and diligence on the part of the company, either in procuring or continuing to use cars and machinery beyond the time when they could be safely used, the company will be liable." In the same court, in McGartrick v. Wason, 4 Ohio St. 566, the general rule is declared to be, that an employer who provides overseers and controls the operation of machinery must see that it is suitable; and if a defect, unknown to a workman, injures him, which ordinary care could have prevented, the employer is liable for the injury.

So, in Wright v. N. Y. Cent. R. R. Co., 25 N. Y. 565, the court says: "The master is liable to his servant for any injury happening to him from the misconduct or personal negligence of the master, and this negligence may consist in the employment of unfit and incompetent servants and agents, or in furnishing, for the work to be done, or for the use of the servants, machinery or other implements and facilities improper and unsafe for the purposes to which they are to be applied."

In Keegan v. Western R. R. Co., 4 Seld. 175, a railroad company which continued a defective and dangerous locomotive was held liable to its servant engaged in running such machine for an injury sustained by him (without negligence on his part) in consequence of such defects.

In Fifield v. Northern R. R., 42 N. H. 225, the plaintiff, a brakeman in the employ of the defendant corporation, being injured without fault on his part, by their negligence in permitting the road to be blocked up with snow and ice, and their car to be out of repair, was held entitled to maintain an action to recover compensation for the damages by him so sustained.

Gibson v. The Pacific Railroad Company.

Under the instruction given for the respondent in this case, the jury must have found that he was exercising ordinary care and prudence at the time he received the injury, that he did not know of the defect in the apparatus used in the coupling of the cars, and that the injury was not due to the carelessness of any fellow-servant. The three instructions given for the appellant were as favorable as could have been asked. The argument is now pressed, that the last two instructions, numbered four and five, respectively, which were refused, should have been given, because there was no evidence that notice of the defect was brought directly home to the knowledge of the directors of the company, and that, for the same reason, the respondent's instruction, which declared that the company was liable if they knew, or might have known, by the exercise of reasonable care and diligence, that the apparatus was unsafe and dangerous, should have been refused.

The difference lies in what amount of care and diligence the master is bound to exercise in supervising and examining the machinery that he furnishes for the use of his servants. The testimony in the case tends strongly to show that the condition of the drawhead was not due to use or negligent repairing, but to improper and defective construction. The company fully recognized the defect, and were altering and improving the cars thus constructed. But the instruction given for the respondent is well supported by authority, and is founded in reason. If, by reasonable and ordinary care and prudence, the master may know of a defect in the machinery he operates, it is his duty to be advised, and not needlessly expose his servants or employees to hazard, peril or mutilation. The servant has no means of ascertaining the facts; the master has, and, therefore, he should exercise that care which devolves on a prudent man in like circumstances.

In Hayden v. Smithfield Manufacturing Company, 29 Conn. 548, it was held, that a servant might maintain an action against his master for an injury caused by defective machinery, when the employer knew, or ought to have known, of the defect, and the servant did not know it, and had not equal means of knowledge.

In Noyes v. Smith, 28 Vt. 59, the declaration averred that the plaintiff was hired by the defendants to have the charge of and conduct and run an engine, and that, by virtue of said employment, it became the duty of the defendants to furnish an engine that was well constructed and safe, etc., but that they carelessly and wrong

Copelin v. The Phoenix Insurance Company.

fully furnished an insufficient engine; that the insufficiency was unknown to the plaintiff, and, "but for want of all proper care and diligence, would have been known to the defendants;" and that, while the plaintiff was in the careful and prudent use of said engine, it exploded, on account of said insufficiency, and injured the plaintiff, etc. Held, on demurrer, that the declaration disclosed a sufficient cause of action.

To the same effect is Ryan v. Fowler, 24 N. Y. 410, where it was decided that the master was responsible to his servant for injuries received by the latter from defects in the building in which the services were rendered, which the master knew or ought to have known.

Upon a full view of the record, I have been unable to discover any error. I think that the law was properly declared, and that a fair trial was had. I therefore advise an affirmance.

Judgment affirmed.

COPELIN V. THE PHENIX INSURANCE COMPANY, appellant.

(46 Mo. 211.)

Marine insurance · ·Abandonment - Total loss.

To warrant the abandonment of a stranded vessel as a total loss, it must appear, to the satisfaction of the jury, that the delivery of the vessel from the peril was, upon reasonable grounds, judged to be impracticable, or not to be effected unless at an expense that would absorb all her value. The owner of a vessel, abandoned as a total loss, is not bound to receive her from the underwriters, if there is any material deficiency in her repairs. nor unless she be repaired and returned within a reasonable time.

THIS was an action brought upon a policy of insurance against the underwriters in favor of the plaintiffs, by which the steamboat Benton was insured for $5,000 for one year, commencing on the 26th day of March, 1865. The policy is in the usual form of marine insurance. The evidence in the case tends to show that on the morning of the 3d day of November, 1865, while the Benton was descending the Missouri river, a number of miles above Omaha, she was driven by a heavy wind upon a large snag with such violence that the snag went through her hull, making a large hole,

Copelin v. The Phoenix Insurance Company.

from which she soon filled with water, and that she was run upon a bar as far as possible; that her officers immediately erected pumps and bulkheads, and commenced pumping, and used their best efforts to raise her, and that they worked for several days without success; that all the time the water was washing out from under midships and her bow; that her bow was settling down. She was in a bad condition, being twisted, and in danger of breaking in two. While in this condition, the officers concluded that they could only save her machinery, and that all the balance would be a total loss. These facts they telegraphed to the plaintiff, at St. Louis, and received instructions from him, and they say from the defendant also, to proceed to wreck her as the only means of saving any thing. The weather at that time was cold, and the river about closing with ice. It appears that on the 21st day of November the defendant took possession of the boat or wreck for the purpose of raising or repairing her, and restoring her to the plaintiff; that on that day, as plaintiff considered her a total loss, he made a formal written abandonment of her to defendant; that on the 27th day of November defendant succeeded in raising the hull, as the river had fallen very much in the mean time. Defendant started with her for St. Louis on the 20th day of March, 1866, being prevented from going earlier, as is alleged, on account of the ice, and she arrived at that port on the 12th of April thereafter. She was then put upon the docks to be repaired, and, on the 9th day of May, 1866, she was tendered to the plaintiff, six months after the loss, and two months after the expiration of the policy. The actual repairs cost $1,764.76, and the expense of raising her was $12,132.82; and she was worth, when tendered to the plaintiff, $12,000 only. Her valuation in the policy was $45,000.

There was further evidence going to show that defendant did not use proper diligence in making the repairs, and that all the repairs that were done could have been done within four days after the boat reached St. Louis; that the defendant did not repair the injury done by the sinking, and that it well knew this; that, in fact, it would have cost from $5,000 to $6,000 additional to have repaired the boat and put her in substantially as good condition as she was when she struck the snag; and that she was not properly repaired or tendered within a reasonable time. The case was tried before the court, and upon certain declarations of law the verdict was for plaintiff.

VOL. II.-64

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