Cumberland & Pennsylvania Rail Road v. State ex rel. Moran

Alvey, J., delivered the opinion of the Court. This action was brought by the father to recover for the death of his son caused by the explosion of a locomotive engine on the road of the defendant, while the son was employed as fireman on such engine. The objection to the plaintiff’s right to recover is mainly founded in the supposed want of evidence to establish the existence of negligence on the part of the defendant, in providing the engine, and in the employment of workmen to superintend and keep such engine in proper repair. ²⁹¹ We shall not undertake to recapitulate the evidence, nor to show what weight was due to any particular part of it; our power in this respect being simply to ascertain whether there was evidence legally sufficient upon which the Court below was justified in submitting the case to the jury. To this latter tribunal belonged the power and duty of passing upon the credit of witnesses, and of comparing and weighing the evidence introduced by the respective parties, and deducing therefrom conclusions as to the facts put in issue by the pleadings.

With those conclusions we have nothing to do, provided there was some evidence legally sufficient for the consideration of the jury in determining the questions raised. The power was with the Court below to grant a new trial, and if the verdict was against the decided weight of evidence, as has been argued by the counsel for the defendant, it is but fair to presume that a new trial would have been granted if it had been applied for. Upon examination of the record, we think there was evidence to go to the jury upon the questions in controversy ; and hence the Court below committed no error in rejecting the third, sixth, seventh and eighth prayers of the defendant. It was shown, on the part of the plaintiff, that the engine Ho. 22 had been purchased in 1869, as a second-hand engine, then out of use ; and that the agents of the defendant, entrusted with the power of making the purchase, failed to ascertain the age of the engine, the use to which it had been subjected, or its condition, further than by an examination of its external appearance as then presented.

It was proved that, at the time of the explosion, resulting in the death of the plaintiff’s son, the engine was in a very defective condition ; that its dome was cracked, and the plates of iron of which the boiler was composed had, from some cause, lost their tenacity and power to resist an ordinary pressure of steam ; and that the defective condition of the engine had been brought to ²⁹² the knowledge and attention of the employes of the defendant, whose business it was to repair the engine. It is true, that, on. the part of the defendant, it was proved that every .precaution was taken,' and that the engine was repaired, and was supposed to be in a good, safe condition ; but, as we have said, it was for the jury to determine, upon the real state of the facts, as they found them to exist, whether there was negligence on the part of the defendant. As to the law of the case, that would seem to be well settled. When a servant engages for the performance of services for compensation, it is implied in the contract, as between himself and the employer, unless otherwise stipulated, that he takes upon himself all the natural risks and perils incident to the service.

In such case, the presumption of law is, that the risks are considered in adjusting the amount of compensation for the services to be rendered. Where the nature of the service is such that, as a natural incident to that service, the servant must be exposed to the risk of injury from the negligence of other servants of the' same employer, or from the use of dangerous machinery, such risk is among the natural perils which the servant assumes upon himself, as between bimself and the master ; and consequently there is no liability of the latter to the former for injuries resulting from the negligence of other servants or co-employes in the same common employment, or the use of such machinery. If, however, the master has wrongfully and unjustifiably enhanced' the risk to which the servant is exposed beyond the natural risk of the employment, which must be jsresumed to have been in contemplation when the employment was accepted, as by knowingly or negligently employing incompetent or unfit servants, or supplying defective machinery,— in. such cases, the master may be held liable for the consequences of such negligence. Morgan vs. The Vale of Neath R. Co., 5 B. & S., 570 ;