It by no means follows that an employer is liable because a particular accident might have been prevented by some special device or precaution not in common use. All the cases agree that the master is not bound to use the newest and best appliances. He performs his duty when he furnishes those of ordinary character and reasonable safety, and the former is the test of the latter; for, in regard to the style of implement or nature of the mode of performance of any work, "reasonably safe" means safe according to the usages, habits, and ordinary risks of the business. Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger but of negligence; and the unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business.
The employee was killed when a top-heavy train car overturned and crushed him. The claimant brought an action against the employer to recover damages for her son's death, claiming that the employer was negligent in allowing broad-gauge cars to be placed upon a narrow-gauge truck. The trial court found in favor of the claimant, and the employer sought review. On appeal, the court reversed, holding that it failed to find any evidence of the employer's negligence. The court held that in the absence of evidence tending to show that the loading of cars in the manner complained of was an unusual occurrence, the trial court should have directed a verdict for the employer.
Can a railroad company be held liable for an employee's injuries where narrow gauge trucks were attached to standard gauge rail cars, making the cars top-heavy?
We have examined all the testimony carefully, and fail to find any evidence of defendant's negligence. The negligence declared upon is the placing of a broad-gauge car upon a narrow-gauge truck, and the use of "an unsafe, and not the best appliance, to wit, the flat centre plate;" or, as expressed by the learned judge in his charge, in using on the narrow-gauge road the standard car bodies, and particularly the New York, Pennsylvania & Ohio car body described by the witnesses. But the whole evidence, of plaintiff's witnesses as well as of defendant's, shows that the shifting of broad-gauge or standard car bodies on to narrow-gauge trucks for transportation, is a regular part of the business of narrow-gauge railroads, and the plaintiff's evidence makes no attempt to show that the way in which it was done here was either dangerous or unusual. Haleman says the majority of the bearings fit, and those that do not, have hard-wood blocks put under them, and the blocks are fastened with telegraph wire, and he was not positive but that some were bolted on. The particular car complained of was blocked and wired. Cazely and Richmond say it was the custom to haul these broad-gauge cars on the narrow-gauge trucks, though most of the broad-gauge were Erie cars, of a somewhat different construction; and Morris says the car in question was put on a Hays truck, fitted for carrying standard-gauge cars on a narrow-gauge road, and that this particular kind of "Nypano" car was so hauled quite often. These are plaintiff's own witnesses, and none of them say the practice was dangerous. The nearest approach to such testimony is by Morris, who says he "had his doubts."