CINCINNATI, N. O. & T. P. RY. CO. v. ROBERTSON, 139 F. 519

BURTON, Circuit Judge, after making the foregoing statement of the case, delivered the opinion of the court. The law is that a railway company owes to its employes the duty of using reasonable care to provide them with reasonably safe appliances to do their work, and the same degree of care to keep such-appliances in repair and free from defects. There is, however, no-duty to provide the latest, safest, or best appliances, but only such as are reasonably safe..

Nevertheless, if one accept employment upon, about, or with machinery or appliances which he knows are not safe by reason of defects, or such defect is so obvious as that he must be taken as matter of law to know its unsafe condition, he will be taken to accept the hazards due to such defective appliance as one of the risks of the service, and the employer will not be liable for any injury he may suffer from the danger which thus becomes-incidental to the employment. The plaintiff in the case in hand was an experienced locomotive engineer. He had worked upon engines with and without lubricator shields.

When he took the engine assigned him by the defendant company, he knew the lubricator was not protected by shields. By implication of law he agreed to run an engine which he knew to be defective in the matter of protection against the possible explosion of the lubricator tubes.

It was as if he had said: “I will use the lubricator in the condition I find it, and will accept as one of the risks incident to my contract the danger of injury from flying fragments of glass in case the lubricator tubes shall burst, you using due care in their selection.” This continued to be the contract of service for eight or nine months. But there came a time when the plaintiff says there was a change of the terms of the contract of service — a time when the risk of danger from unprotected lubricator tubes was no longer a danger incidental to service.

On December 23d one of his lubricator tubes burst and injured his hand. This accident seems to have aroused the instinct of self-preservation, for on the day following, when he had taken his engine into the roundhouse, he says that he notified the master foreman of the roundhouse, and asked him to put shields on his lubricator. This foreman might very well have said no. In this event, if plaintiff had remained in charge of this engine there would have been no change in the terms of his contract of service.

The notice to the company of the defect and the request to rem-. edy it would not have imposed upon the company any liability from a defect which was known to the employe and which the company refused to remedy. The plaintiff’s continuance in service would have been under an implied assumption of the risk; for if a master chooses he may use an unsafe or defective appliance, and employés who take or continue service, with such knowledge, engage to work with unsafe and defective tools or appliances, assuming the risk as incident to the contract. Tuttle v. Ry. Co., 122 U. S. 189, 7 Sup. Ct. 1166, 30 L.

Ed. 1114; Sweeney v. Berlin Envelope Co., 101 N. Y. 520, 5 N. E. 358, 54 Am. Rep. 722; Hough v. Ry. Co., 100 U. S. 214, 224, 25 L. Ed. 612; Mining Co. v. Davis, 90 Tenn. 711, 18 S. W. 387; Railroad v. Duffield, 12 Lea (Tenn.) 63, 68, 47 Am. Rep. 319; Detroit Crude Oil Co. v. Grable, 94 Fed. 73, 36 C. C. A. 94; 20 Am. & Eng. Ency. Law, 116, and cases cited. But the plaintiff’s contention was that the defendant’s foreman did not refuse to put on shields as requested, but that he agreed to do so, and that in the belief that he would do so he was induced to remain in the service and operate the engine.

The question of whether a promise was made was one of the issues of fact in the case. Plaintiff testified that when he asked for shields, and told Brown, the foreman, that there was none in his box and had been none since he had had the engine, that Brown replied, “Well, they must be fixed.” Now, this was not an explicit promise, but plaintiff says he believed Brown meant him to understand that he would, as soon as he reasonably could, supply shields* and that he acted upon this belief, and remained in the service until January 2d, when another tube exploded, with very lamentable results.

Did the plaintiff have the right to regard this as a promise made to induce him to remain in the service? The learned trial judge thought the meaning and intent of the language employed by Brown, when shields were asked for, was a question for the jury* under all the circumstances. In addition to what we have already set out upon this matter in the statement of the case, he, at the conclusion, gave the following: “I wish to make an addition to my instructions, and that is in regard, to the claimed assurance and promise to remedy the defect.

The sole evidence on that line is the statement of Robertson that Brown said it must be fixed. In order that you may treat that as a promise, if you believe it was said, you must believe it was a reasonable inference on the part of Robertson that that was a promise to remedy the defect, and that it was made in order to induce him to remain in the employ of the company, and that he relied on it as such, and continued in the employment because of it.

If, however, it was a mere expression of .opinion that the shields ought to be there, and not a promise and assurance of the character I have referred to, plaintiff cannot recover in the case.” There was, we think, no error in the instruction given, and none in submitting the question to the jury. The question of whether there was a promise to furnish his lubricator with shields, and whether plaintiff was induced to remain in the management of an engine defective in this respect, having been submitted to the jury, we must, in view of the verdict, assume that both of these questions were found for him.

But the right to rely upon the promise to remedy the matter and to continue in the use of the defective appliance without assuming the risk as incident to the contract of service cannot continue beyond such time as, under all the circumstances, he might expect the promise to be redeemed. If there be undue delay, such as to indicate no purpose to supply the shields needed, it could not be said that after the time had passed within which he could .reasonably expect the repair to be made that he was continuing to use the dangerous appliance in reliance upon a promise which had not been kept.

On the other hand, it could not be reasonably contended that one who is induced to remain in the use of a defective tool by a promise that it should be speedily remedied accepts the danger incident to its use while waiting repair.

Hence the rule is that, when there has been such a definite promise to repair a defect complained of as to reasonably induce the servant to remain in the service, he may recover for any injury caused by such unsafe defective tool or appliance which may be sustained within such a time after the promise as, under the circumstances, performance might be reasonably anticipated, unless it should appear that the danger from a continued use pending removal or repáir would be so great as to be a reckless exposure to danger and constitute contributory negligence. Hough v. Railway Co., 100 U. S. 214, 225, 25 L.

Ed. 612; Dist. of Columbia v. McElligott, 117 U. S. 622, 631, 6 Sup. Ct. 884, 29 L. Ed. 946; Northern P. Rd. Co. v. Babcock, 154 U. S. 190, 200, 14 Sup. Ct. 978, 38 L. Ed. 958; Detroit Oil Co. v. Grable, 94 Fed. 73, 78, 36 C. C. A. 94; Railroad v. Kenley, 92 Tenn. 207, 21 S. W. 326; Trotter v. Furniture Co., 101 Tenn. 257, 47 S. W. 425; McPeck v. Cent. Vt. R. Co., 79 Fed. 591, 25 C. C. A. 110; Stephenson v. Duncan, 73 Wis. 407, 41 N. W. 337, 9 Am. St. Rep. 806; Holmes v. Clark, 7 H. & N. 937.

Thus, if the promise is that’the repair shall be made by a definite time, and the time passes without its being made, the employe cannot ordinarily be regarded as remaining; in service becáuse of reliance upon a broken promise. Trotter v. Furniture Co., cited above. But when the promise is not to repair within a definite time the question as to the time a servant may reasonably continue in service relying upon an assurance of repair must depend upon the circumstances of each case, and most generally the question is one for the jury.

But when there is no conflict as to the facts, and only one inference could reasonably be drawn, the question of what would be a reasonable time during which one might rely upon an assurance of repair may become a question of law for the court.. Thus, in McPeck v. Cent. Vt. R. Co., cited above, the promise was that the practice of not giving signals to warn sectionmen at work on the track of the approach of trains should be corrected.

It was held that, 20 days having elapsed between the complaint and the injury without any change in the management of its trains, the plaintiff could not, as matter of law, rely upon the assurance of a change and had reassumed the risk. In the case before us the promise to supply shields was made on December 2?th. The injury occurred on January 2d. Thus there had been eight or nine days within which to remedy the defect.

It has been pressed upon us very urgently that at the time of his injury the plaintiff could not reasonably be in the service in reliance upon the assurance of repair made eight days before, and must be regarded as having again assumed any risk incident to unguarded lubricator tubes. This question as to whether the unreasonableness of plaintiff’s continued reliance upon the promise of repair after such a lapse of time is one for the jury or the court is not, on the facts of this case, one of easy solution.

The trial judge saw and heard the witnesses, and he thought the matter not so free from controversy as to constitute a mere matter of law. How long might the plaintiff reasonably expect that the promise to him would be carried out? Evidently the answer depends upon a number of circumstances. No time was fixed. The law, therefore, must imply that the “fixing” would be done so soon as it reasonably could, considering the urgency of the matter and the means the company had for suppljdng shields adapted to the purposes of the case.

The matter was not in its nature like the furnishing of a spike, a nail, a nut, or a common tool. Such articles, we might judicially know, are kept in stock and easily supplied. Delay about such an

article would raise a doubt as to the purpose to supply it, and operate as notice that any reliance upon an assurance dependent upon the supplying of such an

article was unjustified. But if lubricator-shields were kept in stock, the defendant did not show it. The effort of plaintiff to show that they were not kept on hand .was defeated by the objection of the defendant itself. An inference from evidence that the company bought its engines and did not build them, and that the shields were in place as a part of the appliances of a complete engine, might justify an inference that shields were not kept on hand, but would have to be ordered from the makers-of the engine.

If so, a delay of eight or ten days might occur between the promise and its fulfillment, and the plaintiff might not unreasonably continue in reliance upon the assurance that the danger-should be removed as soon as such shields could be procured. Then, again, there was evidence, which we have set out in the statement of the case, of the custom and practice of doing repairs according to their urgency and in their time. We do not, upon the whole, think the trial judge should be reversed for holding there was a case for the jury upon this matter of time. The question of contributory negligence has been considered.

The question as to whether the tube which broke was one put in by the plaintiff the morning of the accident, or one which he had not handled, was one dependent upon credibility of witnesses. Plaintiff denied that he replaced or repacked any tube the morning of his injury. There was evidence that he did, and of negligent. packing, and that the tube which burst was one negligently packed by him that morning. The issue was one for the jury.' The court did not err in refusing to instruct for the railway company, and the judgment is accordingly affirmed.