Missouri & North Arkansas Railroad v. Edwards ( 1913 )

Kirby, «L,

(after stating the facts). It is insisted by appellant that the testimony does not disclose any negligence on its part in furnishing the water glass in use upon the engine, and that the appellee assumed the risk of operating the engine with it, as furnished, and therefore was not liable for the injury occasioned by the explosion.

The testimony shows that the Baldwin water glass shield in use on the engine at the time of the explosion of the water glass and injury to appellee was a recognized type in use upon many railroads and regarded as a good shield, and by many as the most practicable, and best that can be used for the protection of the glass and the employees working about it. Many other witnesses testified that such a shield was not as good protection to the employees in case of breakage and explosions of the glass as the net or wire screen shield, which was also shown to be in use upon certain other railroads. In any event, this water glass shield, was shown to be of the type in general use on railroads, the one used exclusively by the Baldwin Locomotive Works in the manufacture and equipment of locomotives, except upon special order of a different design, and it is also undisputed that appellee had observed continually this water glass and shield upon this engine upon which he worked, near him, and made no complaint of any kind about it.

The master is only bound to the use of ordinary care in furnishing safe appliances and apparatus for the use of his employees and is not required to furnish the best known instrumentality, but such only as are reasonably safe. The fact that other and different devices are used by other railroad companies in preference to the one in use by it for the particular purpose would not, of itself, be proof of negligence in the continued use of the one employed. Norfolk & Western Ry. v. Bell, 52 S. E. (Va.) 700; Sappenfield v. Ry., 91 Cal. 48; 27 Pac. 590.

In Arkadelphia Lumber Co. v Bethea, 57 Ark. 76, the court said:

“The general rule is, that an employee who enters upon service, knowing the kind of instrument or machine that he is to work with or about, assumes the risks incident thereto; and that his employer'discharges his full duty in that behalf if he furnish or maintain a good instrument or machine of the particular kind, even though some other kind would entail less risks.”

In Pekin Stave Co. v. Ramey, 104 Ark. 1, this court said:

“It is well settled that it is the duty of the master to exercise ordinary care to-provide his servants with reasonably safe implements and instrumentalities with which to work, and also a reasonably safe place in which to perform their labor. But the master can not be charged with a breach of this duty simply on the ground that a safer method or a safer machine than that from which the injury resulted could have been obtained and might have been adopted. He is not required to furnish any particular kind of appliance, or instrumentality for doing the work. He has performed the full measure of his legal duty when he has exercised ordinary care to furnish an implement or instrumentality that is reasonably safe and suitable for the use of the servant and the work to be done. The fact that some other kind of machine or implement would have been safer, or better, than the one which caused the injury is not the test of the failure on the part of- the master to perform his duty, or of negligence from which to fix upon him a liability.”

It is also true that some of the other engines, a majority of them, perhaps, in operation upon appellant’s road at the time of the injury, were equipped with water glasses protected by wire net screens. But as Labatt says: “The mere fact that a master uses simultaneously different types of the same kind of appliance does not import culpability, the risk arising from these differences are deemed to have been assumed by the servant, provided they are apparent and may be detected without any special skill or knowledge.” Again: “A fortiori must the master be regarded as free from culpability where the evidence clearly shows that several methods are in general use, the choice being a matter of judgment depending upon the surrounding condition. The law then allows absolute discretion to select according to his own judgment.” 1 Labatt, Master and Servant, section 38; see also Harley v. Buffalo Car Mfg. Co., 142 N. Y. 31; 36 N. E. 813. 1 Labatt Master and Servant, section 39; Titus v. Bradford, 136 Pa. 618; 20 Atl. 517.

The appliance here complained of is a simple device, the risks attendant upon the use of which are open, patent and obvious, and it is undisputed that appellee continually observed the water glass and shield near him upon the engine upon which he worked, and made no complaint of any kind about it.

In Railway Company v. Davis, 54 Ark. 389, the court said: “The servant agrees to use in the service the particular kind of implement or machine, and if, under such circumstances, harm comes to him it must be ranked among the risks he assumed when he entered the service. ’ ’

In Ark. Midland Ry. Co. v. Worden, 90 Ark. 411, the court said: “When an employee takes service with his employer, he impliedly ag’rees to assume all the obvious risks of the business, including the risks of injury from the kind of machinery then openly used,-as well as the method of operating the business then openly observed. ’ ’ Citing Choctaw, O. & G. Rd. Co. v. Jones, 77 Ark. 367, and other oases.

In St. Louis, I. M. & S. Ry. Co. v. Corman, 92 Ark. 109, the court said:

“When he enters into a contract to perform service for his employer, he agrees to work at the place expressly or impliedly designated in the contract, and with the tools and appliances regularly furnished by the master for use, ‘so far as these things were open and obvious, so that they could readily be ascertained by such examination and inquiry as one would be expected to make if he wished to know the nature and perils of the service in which he was about to engage.’ ” See also Chicago, O. & G. Rd. Co. v. Thompson, 82 Ark. 11; Arkadelphia Lbr. Co. v. Bethea, supra.

The appellee was a man of average intelligence and had been in the employ of the railroad as a fireman for ten months. He knew that some of the engines in operation upon the road were equipped with water glasses encased and protected with a wire net shield, and others with the Baldwin three-bar steel or copper shield, as in use upon the engine upon which he was at work at the time of the injury. This water glass with its shield was near him on the back of the boiler, on his side of the cab, where it was known to be and easily and continually observed by him, and he also knew that water glasses occasionally burst and exploded, and must have known that the pieces of dying glass could escape from the slots left in the shield for observing the stage of water in the glass, the only danger in the use of it which might arise from its breaking or explosion. Neither is it claimed that there was any defect in it, and upon the whole case, we think it is controlled by the decision in St. Louis, I. M. & S. Ry. Co. v. Wells, 93 Ark. 154, a case precisely in point on the question of assumption of risk.

There was no assurance of safety from the master to cause him to remain in the service nor any complaint from him to the master of a defective or unsafe water glass shield nor was any promise to repair or remedy the defect claimed or relied upon as in the case of St. Louis, I. M. & S. Ry. Co. v. Swaim, 105 Ark. 224, 150 S. W. 861, recently decided.

The court erred in refusing to give appellant’s requested peremptory instruction, and the judgment is reversed and the cause dismissed.