Jones v. Louisville & Nashville Railroad

JUDGE LEWIS

delivered the opinion of the court.

Appellant having, while engaged as an employe of appellee in operating a hand-car, been knocked from and run over by it, brought this action to recover for personal injury then received, which he states resulted from gross negligence of the section-boss, to whose orders he was at the time subject.

The alleged negligence consisted in the section-boss placing appellant at front end of the hand-car, the most dangerous position, for the purpose of working one of the levers, without informing him of the peculiar danger to which he was thereby exposed or instructing him how to *578 avoid it, although he had been employed only a few days as a section-hand and was unacquainted with the business of running hand-cars; and in the section-boss placing or permitting to be placed loose upon the floor of the car, working-tools, in the effort to avoid contact with which, while working the lever, appellant was struck by the lever and knocked from the hand-car and received the injury referred to.

As the lower court, at conclusion of the evidence in behalf of plaintiff, instructed the jury to And for defendant, which was done, the only question for us to consider is whether that action of the court was proper.

It appears that appellant was employed as a section-hand by the section-boss in behalf of appellee, and commenced work on Monday, and received the injury complained of the following Saturday; that each day during that period he, with his co-laborers, under control of the section-boss, was engaged in the work he was employed to do, which required the hand-car to he moved from place to place, and in moving which appellant, like other hands, took part. .But he had never been before so employed, and of course was inexperienced and unskillful, being by occupation a dajr laborer of ordinary intelligence and capacity.

On the day lie was injured, the hands, accompanied by tbe section-boss, bad gone some distance from the station-house for the pui’pose of repairingthe railroad, taking the hand-car with them; and the manner in which appellant was injured is thus stated by him as a witness: “When we started from where we did that work that morning, the tools were just tlirowed upon the car, and there was what they called the spike-maul hammer was jostling- *579 down as the ear was running, and it got down near my feet, and I got a little afraid of the handle and just stooped then to throw the hammer aside on the car further, and I lost the motion of the lever,' I suppose, or something, anyhow the lever struck me, as I raised up, in my breast here, and pitched me off backwards on the road.”

’ -“Accepting that statement as true, which must be done in determining whether the lower court was authorized to take the case from the jury,'the inquiry is, first, whether appellee, by its servant, the section-boss, was guilty of culpable negligence that was the proximate cause of appellant being knocked from the hand-car and injured? Second, if so, whether but for the concurring or co-operating fault of appellant the injury would not have occurred; that is, might the injury have been avoided by the exercise of ordinary care on his part?

No doubt, as-counsel contends “it is the duty of the master to give such warning to the servant of all defects or hazards -incident to the occupation of which the master knows or ought to know, and such information as may be warranted by ignorance, inexperience or want of capacity of the servant and the dangerous nature of the employment.” But when a servant has actually operated, and seen others operate, an implement or machine often-enough to enable him, by the exercise of ordinary intelligence and care, to learn how to avoid being injured by it, or when the mode of operating it is so simple as that a person of ordinary intelligence or care can at once perceive the safe and proper mode of operating it, there is no duty resting on the master to instruct him. No person who has once worked the lever of a moving hand-car, or seen another do it, need be informed that it is dangerous, *580 iii the expressive language of appellant himself, to lose the motion of the lever.

Whether it was negligence in the section-boss to place or permit the tools to be placed upon the' floor of the liand-car without being fastened, is immaterial, because appellant was not injured thereby. Nor was it negligence to permit him to take position on front end of the car, because, while the actual injury is likely to be more serious to a person falling or knocked off the front than off the rear end, the danger of being injured is not, as appears from the evidence, so great.

It, however, seems to us plain that, whether the section-boss was guilty of negligence or not, the injury received by appellant was not the proximate result of his want of knowledge of the danger of stooping to throw the hammer aside, but was caused by his own fault, and might have been avoided by the exercise by him of ordinary care. Eor the evidence does not show there was a reasonable probabilityj of his being injured or endangered by the hammer handle, and if it had been necessary, which does not appear, for it to be put aside, he might, by calling the attention of the section-boss, have had the car stopped for the purpose.

In our opinion there is no evidence showing or tending to show a cause of action in favor of appellant.

Judgment affirmed.