LOUISVILLE & N. R. CO. v. MILLER et al., 104 F. 124

LT7KTON, Circuit Judge, after making the foregoing statement of the case, delivered the opinion of the court.

The case was submitted to the jury upon the theory that the plaintiff was inexperienced in the work of a switchman, and that this was known to the railroad company; that, having been employed as a switchman, and assigned to work in the general yard of the company, where he was likely to- be required to handle foreign cars, with and without bumpers or deadheads, and having coupling apparatus of many styles, the company was bound to qualify him for such service by giving Mm instruction adequate to the hazards and risks incident to the occupation, and by which he might perform Ms duties in the way safest for himself.

The instructions to the jury in respect to this issue were full and clear, and no exception was taken thereto. The learned counsel for plaintiff in error say, however, that no such issue should have been submitted, and that it was error to deny the request for a peremptory instruction for the defendant.

This contention is primarily based upon the proposition that the plaintiff applied for employment as a switchman, and that he must be, therefore, taken to have assumed all the risks incident to the usual duties of a switch-man, and that, even if the company knew of his inexperience, he cannot escape the consequences of his own ignorance or inexperience, having voluntarily solicited the particular employment in which he was injured. This view’.of the law is seemingly supported by the cases of Dysinger v. Railway Co., 93 Mich. 646, 53 N. W. 825, and McDermott v. Railroad Co., 56 Kan. 319, 43 Pac. 248.

We do not assent to the reasoning of these eases, nor are they in accordance with the great weight of authority. It is illogical to say that a servant impliedly assumes the hazards and risks of an occupation which are known to the master, but which the master knows are unknown to the servant, unless the dangers are so obvious that even an inexperienced man could not fail to escape them by the exercise of ordinary care.

The law is now well settled that the duty of cautioning and qualifying an inexperienced servant in a dangerous occupation applies as wbll to one whose disqualification arises from a want of that degree of experience requisite to the cautious and skillful discharge of the duties incident to a dangerous “occupation with safety to the operator, as when the disqualification is due to youthfulness, feebleness, or general incapacity.

If the master has notice of the dangers likely to be encountered, and notice that the servant is inexperienced, or for any other reason disqualified, he comes under an obligation to use reasonable care in cautioning and instructing suc.li servant in respect to the dangers he will encounter, and how best to discharge his duty. Shear. & R. Neg. (5th Ed.) § 219a; Brennan v. Gordon, 118 N. Y. 489, 23 N. E. 810, 8 L. R. A. 818; Whitelaw v. Railroad Co., 16 Lea, 391, 397, 1 S. W. 37; Sullivan v. Manufacturing Co., 113 Mass. 396; Railway Co. v. Frawley, 110 Ind. 18, 9 N. E. 594; Coombs v.

Cordage Co., 102 Mass. 572, 597; O’Connor v. Adams, 120 Mass. 427; Reynolds v. Railroad Co., 64 Vt. 66, 24 Atl. 134; Railroad Co. v. Price, 72 Miss. 862, 18 South. 415; Hughes v. Railway Co., 79 Wis. 264, 48 N. W. 259; Campbell v. Eveleth, 83 Me. 50, 21 Atl. 784; Hull v. Hull, 78 Me. 114, 3 Atl. 38; Railway Co. v. Brick, 83 Tex. 598, 20 S. W. 511; Felton v. Girardy (decided by this court at this term) 104 Fed. 127.

Undoubtedly, when one of apparent maturity and of average capacity solicits a particular line of work, the master has the right, in the absence of information, to assume that the applicant is qualified for the particular work applied for. It is only where such facts are brought to his notice of the disqualification of the servant to safely encounter dangers known to him, and presumptively unknown to the servant, that the duty of cautioning and instructing the servant arises. In the case at bar the plaintiff below gave notice that he had had no experience as a switchman.

The yard master then undertook his instruction, and assigned him, as a learner, to a switching crew. In less than five days the foremen of these crews certified that he was qualified. The yard master, with full notice of this brief tutelage, assigned him to duty without further instruction. There was evidence from which the jury might infer that such an experience was wholly inadequate to fit him to encounter the dangers he was likely to meet.

The particular coupling he undertook rvas one which he was likely to have to make, and was a risk winch an experienced servant would assume as an ordinary hazard of the service. Tuttle v. Railway Co., 122 U. S. 189, 7 Sup. Ct. 1166, 30 L. Ed. 1114; Kohn v. McNulta, 147 U. S. 238, 13 Sup. Ct. 298, 37 L. Ed. 150. Yet the plaintiff testified that he had had no instruction, and no caution in respect to such cars and such diverse coupling arrangements.

The duty of qualifying a green or inexperienced servant for the safe performance of a new and dangerous duty is a personal duty of the master, and, if it be delegated, the delegate must be qualified, and should not discontinue the instruction until it is completed. The negligence of the servan! h who undertook to qualify Miller was the negligence of the master. Railroad Co. v. Fort, 17 Wall. 553, 21 L. Ed. 739; Brennan v. Gordon, 118 N. Y. 489, 21 N. E. 810, 8 L.R. A. 818. We have carefully considered the entire evidence found in this transcript.

It is enough to say that, while the case was a close one upon the facts as to the instruction received by Miller, yet there was such a conflict between his testimony and that of the other witnesses (hat we are content to hold that there was no error in refusing an instruction to find a verdict for the plaintiff in error. Neither are we prepared to say (hat the special dangers incident to the peculiar colliding which Miller undertook were so obvious as to constitute an assumption of the risk.

That he could see that each car was supplied with a bumper or deadwood, and that one car was equipped with au automatic coupler and the other with a skeleton drawhead, is conceded. Still, it was a coupling which could he made safely if done in the right way. What the right way was, was not so obvious a matter as to justify Ihe court in holding as mat ter "of law that it was a situation about which Miller needed no caution and no instruction. The emir assigned upon the admission of Fitzgerald’s evidence is not well taken. The exception was too broad, and the ruling made subject to further consideration.

The court's attention was not again called to the matter. Aside from this, Fitzgerald testified to the same facts, and that which had possibly been subject in part to objection as hearsay became harmless. It was also harmless for the further reason that the court distinctly instructed the jury that the yard master, Yates, alone represented 'the company in the employment of Miller, and “that the defendant is not affected by what any of the other employós did.” The judgment is accordingly affirmed.