PORT BLAKELY MILL CO. v. GARRETT et al., 97 F. 537

MORROW, Circuit Judge, after stating the facts, delivered the opinion of the court. The assignments of error, eight in number, relate to instructions given to the jury to which exceptions were taken by the plaintiff in error, and instructions to the jury requested by the plaintiff in error which the court refused to give.

These several assignments of error involve but a single question, which is sufficiently contained in the following instruction that the court gave to the jury, and which plaintiff in error contends was erroneous: “It was the duty of the defendant in this case to inspect all the cars in that train, including this car upon which the lumber was loaded, and see, before it went out upon a run, that they were in safe condition for operation.

And, when I speak of the car upon which the lumber was loaded, it is to be understood as including, not only the platform itself, and the trucks and running gear, but the side stakes which were required to hold the lumber in place, and keep it from shaking off or being toppled off. That obligation is one which the defendant company owed to all of its employés, including Hugh Garrett, and it cannot be relieved from responsibility and liability by showing that, if there was anything wrong about that car, it was negligence of a co-employé of Hugh Garrett.

In the matter of seeing that the car was tit for service — that is, in the matter of exercising reasonable care and prudence to have it in fit condition for safe operation — is a duty which the employer owed; and no matter who the employé was, charged by the defendant with that particular duty, any neglect in that regard would be a breach of duty by the defendant company which would create a liability, if in consequence of neglect in that particular an injury resulted.” It is a well-established rule, in the doctrine of master and servant, that it is the duty of the master to provide a reasonably safe place for the servant to work in, and to furnish reasonably safe and adequate appliances or instrumentalities for the servant’s use.

Under this rule, it became the duty of those charged with the management of the railroad to fit or prepare the lumber car for the use to which it was assigned.

But it is urged by plaintiff in error that its duty in this respect was fulfilled in the supplying of proper material for the stakes in question, and that the preparation of the stakes and fitting them to the car was a part of the work the car loader was employed to perform; that, as the car loader was admittedly a fellow servant of the deceased, jmy accident or loss resulting from the negligence of the car loader could uot be attributed to the plaintiff in error. The objection to this

interpretation of the rule is that it limits the duty of the master to the mere act of furnishing suitable material for the construction of a safe place and the supply of adequate appliances, —an

interpretation applicable to the relation of employer and employé in the erection of temporary scaffolding and structures of that character in the building of houses, the opening of mines, or the grading of railroads, but inapplicable to the relation of master and servant in the operation of a railroad, where the suitable equipment of a car for a particular service is necessarily the duty of (die master.

If the act from which an injury arises is one pertaining to the duty which, under the law, the master owes to his servants, he is responsible to them for the manner of its performance, and is not excused from liability to an employé for an injury caused by the negligence of a fellow servant unless he himself has done his full duty. Hough v. Railway Co., 100 U. S. 213, 218; Railroad Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590; Railroad Co. v. Baugh, 149 U. S. 368, 386, 13 Sup. Ct. 914; Railway Co. v. Daniels, 152 U. S. 684, 689, 14 Sup. Ct. 756. In the case of Railroad Co. v.

Baugh, supra, after a careful review of the cases hearing upon this question, the supreme court explained the rule in the following language: “A master employing a servant impliedly engages with him that the place in which he is to work, and the tools or machinery with which he is to work, or by which he is to be surrounded, shall be reasonably safe. It is the master who is to provide the place and the tools and the machinery, and when ho employs one to enter into his service he impliedly says to him that there is no other danger in the place, the tools, and the machinery than such as is obvious and necessary.

Of course, some places of work and some kinds of machinery are more dangerous than others; hut that is something which inheres in the thing- itself, which is a matter of necessity, and cannot he obviated. But, within such limits, the master who provides the place, the tools, and the machinery owes a positive duty to his employé in respect thereto. That positive duty does not go to the extent of a guaranty of safety, but it does require that reasonable precautions be taken to secure safety, and it matters not to the employs by whom that safety is secured, or the reasonable precautions therefor taken.

He has a right to look to the master for the discharge of that duty, and if the master, instead of discharging it himself, sees fit to have it attended to by others, that does not change the measure of obligation to the employé, or the latter’s right to insist that reasonable precaution shall be taken to secure safety in these respects. Therefore it will be seen that the question turns rather on 1he character of the act than on, the relations of the employes to each other.

If the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master; but, if it be not one in the discharge of sncli positive duty, then there should be some personal wrong- on the part of the employer before he is held liable therefor.” In Railroad Co. v. Peterson, 162 U. S. 353, 16 Sup.

Ct. 843, the same court, in speaking of the duty of the master to provide reasonably safe tools, appliances, etc., for the accomplishment of the work to be done, said: "If, instead of personally performing these obligations, the master engages another to do them for him, he is liable for the neglect of that other; which, in such case, is not the neglect of a follow servant, no matter what his position as to other matters, hut is the neglect of the master to do those things which it Is the duty of the master to perform as such.” Applying the principles of these decisions to the facts in the case before us, the conclusion follows that it was tbe duty of tbe plaintiff in error to see that the lumber' car was in safe condition for operation before it was put into service on tbe day of tbe accident, and tbe delegation of' tbis duty to a fellow servant of tbe deceased did not relieve tbe master from liability.

Tbis duty required that there should be provided a lumber car in safe condition for service, including side stakes of proper material and sufficient number. Tbe car was not completely equipped for tbe safe transportation of lumber without them. They take tbe place of permanent sides or restraining appliances, and are only made detachable to allow tbe car to be used for other purposes. Tbis very point was in issue in tbe case of Railroad Co. v. La Rue, 27 C. C.

A. 363, 81 Fed. 148, where tbe court held that, "in tbe case of a low-sided gondola car employed in tbe transportation of lumber, side standards to keep tbe load in place, whether such standards are for constant use, and permanently attached to tbe car by chains, or are unattached and intended for use on a single occasion, are appliances necessary for tbe proper equipment of tbe car, and as essential to tbe safe transportation of tbe load as is a proper car body. These side standards, to all intents and purposes, are part of tbe car,” — citing, to tbe same effect, Bushby v. Railroad Co., 107 N. Y. 374, 14 N.

E. 407. We discover no error in tbe instructions or in tbe rulings of tbe court below. Tbe judgment is therefore affirmed.