MEXICAN CENT. RY. CO., Limited, v. MURRAY, 102 F. 264

After stating the case as above, the opinion of the court was delivered by PARDEE, Circuit Judge. In refusing the general charge in favor of the defendant, the trial judge expressed his doubt-as to- whether the charge should be- given/ but resolved that doubt in favor of tlie submission of tlie case to the jury. This was proper, and any doubts we have on the subject are resolved on the same side.

It is clear that, as to the manner and method of the work in hand at the time Murray was injured, the danger and risk were as well known to him as to any other servant of the1 company there employed, either as superintendent, foreman, or ordinary laborer, and we are of opinion that, as to the apparent risks and dangers in carrying on the work, Murray assumed them with his employ-' ment. But the case shown requires us to go further.

While Murray assumed the risks attending upon the operation, and knew there was danger, the question is presented whether, in assuming the known and apparent risks, he also assumed the risk resulting from unknown defects in the tools and appliances furnished by the railway company. The loop that broke — the breaking of which was the proximate cause of Murray’s injury — was defective, and the negligence of the company in furnishing it is conceded.

The defect, while it wras more or less apparent, and was discoverable upon slight inspection, was not known to Murray, nor probably to any other employé of the railway company, at the time. There had been no inspection of the same. No effort had been made on the part of the railway company to ascertain whether the stirrup was or was not defective. Under the rules which govern in regard to appliances furnished by employers to employ és, it must be held that in regard to this defective loop the railway company knew, or ought to have known, that it was defective.

This makes a case where, in regard to the risks and dangers attending upon the work, the employer knew more than the employés, and he did not communicate his information. Conceding that Murray assumed the known risks and dangers attending upon his work, did he also assume the additional risks and dangers resulting from defects in appliances which were unknown to Mm, but were known, or ought to have been known, to the railway company? If he did not assume these unknown risks, the general charge was properly refused.

If - it was a matter for determination from the evidence, and ihe evidence on the point was conflicting and uncertain, then there was no error in refusing the general charge. “It is well settled that, where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law but of fact, and to be settled by a jury; and this, whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them. Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745; Railroad Co. v.

McDade, 135 U. S. 554, 10 Sup. Ct. 1044, 34 L. Ed. 235; Railroad Co. v. Converse, 139 U. S. 469. 11 Sup. Ct. 569, 35 L. Ed. 213.” Railroad Co. v. Powers, 149 U. S. 43, 45, 13 Sup. Ct. 748, 37 L.

Ed. 642. “The elementary rule is that it is the duty of the employer to furnish appliances free from defects discoverable by the exercise of ordinary care, and that the employé has a right to rely upon this duty being performed, and that, while in entering the employment he assumes the ordinary risks incident to the business, he does not assume the risk arising from the neglect of the employer to perform the positive duty owing to the employé with respect to appliances furnished.

An exception to this general rule is well established which holds that where an employé receives for use a defective appliance^ and with knowledge of the defect continues to use it without notice to the employer, he cannot recover for an injury resulting from the defective appliance thus voluntarily and negligently used.

But no reason can be found for and no authority exists supporting the contention that an employé, either from his knowledge of the- employer’s methods of business, or from a failure to use ordinary care to ascertain such methods, subjects himself to the risks of appliances being furnished which contain defects that might have been discovered by reasonable inspection. The em-p’oyer, on the one hand, may rely on the fact that his employé assumes the risks usually incident to the employment.

The employé, on the other, has the right to rest on the assumption that appliances furnished are free from defects discoverable by proper inspection, and is not submitted to the danger of using appliances containing such defects because of his knowledge of the general methods adopted by the employer in carrying on his business, or because by ordinary care he might have known of the methods, and inferred therefrom that danger of unsafe appliances might arise. The employé is not compelled to pass judgment on the employer’s methods pf business, or to conclude as to their adequacy.

He has a right to assume that the employer will use reasonable care to make the appliances safe, and to deal with those furnished relying on this fact, subject, of course, to the exception which we have already stated, by which, where an appliance is furnished an employé in which there exists a defect known to him or plainly observable by him, he cannot recover for an injury caused by such defective appliance, if, with the knowledge above stated, he negligently continues to use it.

In assuming the risks of the particular service in which he engages, the employé may legally assume that the employer, by whatever rule he elects to conduct his business, will fulfill his legal duty by making reasonable efforts to furnish appliances reasonably safe for the purposes for which they are intended; and while this does not justify an employé in using an appliance which he knows to be defective, or relieve him from observing patent defects therein, it obviously does not compel him to know or investigate the employer’s modes of business, under the penalty, if he does not do so, of taking the risk of the employer’s fault in furnishing him unsafe appliances.” Railroad Co. v.

Archibald, 170 U. S. 605, 671-673, 13 Sup. Ct. 777, 42 L. Ed. 1188. Now, Murray testified: “I helped put some of the stirrups on the foot of the bridge myself. I think there was about three broke. "When one would break, they would go and get another, and put it on, and go ahead. I saw what kind of materials the stirrups (loops) were made of when they brought them there. I remember distinctly of two of these same kind of irons breaking before the one broke that injured me. I had been working there, and I had seen two or three of these stirrups broken before. I knew that they had been broken.

I knew that they would break if too much weight were put upon them, and at the time I was turning the ratchet, or turning the jack, — that was just before the one broke that injured me. — I found it turning very hard, and I apprehended that the stirrup might break.” Taking this in connection with tbe fact that tbe loop wbicb broke and caused Murray’s injuries was defective, — a fact wbicb Murray did not know, — it cannot be held, as a matter of law arising on undisputed evidence, that Murray, in continuing to work after two of the loops broke, assumed all the risk attendant upon the work because lie continued to work when the third loop was strained, and he feared that also would break if the strain should be continued.

The distinction is very narrow, but it clearly exists. The second, third, and fourth charges requested were properly refused for the reasons just given in regard to the action of the court in refusing the general charge, and need no further notice.

The fifth charge requested, as follows: “You are charged that it you believe that when the iron stirrup broke, and the beam under which the jackscrew was placed, that plaintiff was engaged in turning, fell, that the same would have fallen without, any injury to plaintiff, if the same had not been pushed towards plaintiff by - Robinson, a co-laborer, and that the pushing of said beam towards said plaintiff by said Robinson knocked him off of the platform, and caused the injury to said plaintiff, (hen he cannot recover in this case; for said injuries to plaintiff would be caused by the act of a fellow-servant, for which defendant is not liable in damages,” —Was properly refused, because the proximate cause of the injury was the breaking of the stirrup, and any negligent action of a fellow servant taken at the time, particularly for the purpose of protecting himself, did not relieve the railway company from the responsibility of its own negligence.

The sixth charge was properly refused, because it is'to the effect that, unless the plaintiff received his injuries from the natural and probable result of raising the end of the bridge, and by the means employed in raising the same, he cannot recover; and this eliminates entirely the issue as to whether the appliances furnished to raise the end of the bridge were suitable, proper, and reasonably safe, and, if otherwise correct in law, it would have tended to mislead the jury.

The seventh charge requested, that: “If it should appear that plaintiff knew that in performing the duty of raising the end of said bridge in the manner that he and his co-employés undertook to do so, or by the exercise of ordinary care might have known that it was dangerous, and he (plaintiff) still continued performing said work, then, in that case, plaintiff cannot recover in this case.

If there was danger to plaintiff in performing said work, and the danger was known to him or open to his observation, then it was his duty to refuse to perform the work, and thereby avoid the danger; and if he voluntarily continued to perform the work with the knowledge of the danger, or with the danger open and obvious to him, he cannot recover, for in continuing to perform the work under such circumstances he would assume the risk of such known or open and obvious danger,” —Was correctly refused, for the reason just given as to the sixth requested charge.

All the questions raised as to the laws of Mexico and their applicability in this action have been heretofore determined adversely to the plaintiff in error, and need no further consideration. Evey v. Railway Co., 26 C. C. A. 407, 81 Fed. 295; Railway Co. v. Marshall, 34 C. C. A. 183, 91 Fed. 933. The judgment of the circuit court is affirmed.