Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-02-22

Notes of Cases Recently Decided,
Which are of Interest to
Our People.
v. & N. c. WHEEL co. ". CHALK
LEY.
Supreme Court of Appeals of Virginia.
February :, 1900.
n MASTER IS NOT LIABLE FOR
INJURIES RESULTING FROM
MACHINERY UNLESS HE KNEW.
OR COULD HAVE KNOWN IF HE
HAD USED ORDINARY CARE,
THAT IT HAD BECOME DEFEC-
TIVE OR UNSAFE.
EVIDENCE OF REPAIRS MADE
AFTER THD ACCIDENT IS NOT
ADMISSIBLE TO SHOW THE MA
CH1NEFY WAS UNSAFE. A MAS
TER OWES THE SAME CARE TO
A SERVANT WHO DOES WORK
WITH HIS KNOWLEDGE AND
PERMISSION. AS IF DONE BY HIS
ORDER.
THE SERVANT DOES NOT ASSUME
THE RISK OF DEFECTIVE, MA
CHINERY FOR A REASONABLE
TTME AFTER THE MASTER HAS
PROMISED TO REPAIR IT, UN-
LESS THE DANGER is so PALPA-
BILE IMMEDIATE AND CON-
SLANT THAT ONLY A RECKLESS
PERSON WOULD USE IT.
This was an action for damages aris-
Ing from the alleged negligence Of the
defendant in allowing certain tools,
appliances and machinery to become
ana continue in defective and I'M
safe condition. There was a Judgment
for plaintiff and defendant appealed.
The court says:
The first assignment of errer Is to the
introduction of evidence showing what
repairs had been made upon the alleg-
ed defective machine subsequent to the
injury complained of.
The question of whether such evil
dence is admissible to show that the
former condition OF the machine was
unsafe and that the defendant was neg
ngent in SO maintaining 1t, does not
seem to have been passed upon by this
court. Ihere is some conflict in the
cases cited on the subject. but it
seems now to be settled, by the great
weight of authority and upon the most
convincing reasons, that such evidence
is not competent.
The objection urged to instruction
No. is that the jury were told that. IL
they believed that the plaintiffs injury
was caused by defects in the machinery
and appliances about which he was en-
gagged in working, then ne was entitled
TO recover, unless he knew or by the
exercise Of reasonable care might have
known. OF such defects and OF the dan
ger In working with the machinery and
N NIL t. 4.
unless he was guilty OF contributory
negligence, without informing the jury
that they must further believe, in order
that the plaintiff should recover, that
the Wheel Company knew or ought to
have known of the defects which
caused the injury. This objection Is
we'll taken. Whilst it is clearly the
duty of the master to exercise ordinary
care to provide for the use of his SER
wants reasonably safe, sound and suit
able machinery and appliances, and to
examine and inspect such machinery
and appliances from time to time, and
to use ordinary care to discover and
repair defects in the same, STILL unless
he knows or would have known, If he
had used ordinary care, that the ma
chinery or appliances which he has
provided for the use of his servants
have become defective and unsafe he
is not liable for injuries resulting there
from.
II was conceded In oral agreement
that the plaintiff could not be consid-
cred a volunteer but must he treated
as a servant of the defendant. This
being SO, 1t owed him the same degree
-ef-care- whilst running the saw with
its knowledge and by It's permission as
If he had been ordered to run 1t, and
for failure to perform that duty was
equally liable to him.
The aUinanca fapdarad 70 Shar,
on the day the plaintiff was injured he
asked the defendant company to repair
the pulley, one of the defective applian-
ances complained of. and that he had
assurances that it would be repaired
as soon as Clark, the sawyer had
sharpened a saw, and that in about in
twenty minutes thereafter the injury
occurred. This was sufficient, I think, to
entitle the plaintiff to to the instruction
given. Where the master promises or
gives the servant reasonable ground to
infer or believe that the defect will be
repaired, the servant does not assume
the risk Of an injury caused thereby
within such period OF time after the
promise of assurance as would be rea-
sonably allowed for its performance,
unless the danger is so palpable, i'm
mediate and constant (of which there
is no evidence in this case) that no
one but n reckless person would expose
himself to 1t, even after receiving such
promise or assurance. Reversed.
TN RE NIEcnEyrT