135 554 Syllabus. hours, as a matter of private enterprise for transporting express By the terms of section 3961 of the Revised Statutes increased compensation, for expedited service, is to be calculated upon the basis of the necessary men and stock required to perform the service under the original contract. It is not alleged that the defendant did not use 50 per cent more men and horses under the expedited schedule than was necessary in carrying the mails on a 62-hour schedule; nor is it alleged that the cost of the expedited service was excessive. We see no such false representations by the defendant, nor such mistake by the post-office, set forth in this petition, as would justify a recovery in this case, and the judgment of the court below sustaining the demurrer is, therefore, Affirmed. MR. JUSTICE FIELD did not sit in this case or take any part in its decision. 145 607 135 554 L-ed 235 191 725 135 554 L-ed 235 148 242 149 45 135 554 L-ed 235 531 69 53f 664 135 554 L-ed 235 152 153 135 554 L-ed 235 ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. No. 137. Argued December 2, 3, 1889. Decided May 19, 1890 An employer of labor in connection with machinery is not bound to insure the absolute safety of the machinery or mechanical appliances which he provides for the use of his employés, nor is he bound to supply for their use the best and safest or newest of such appliances; but he is bound to use all reasonable care and prudence for the safety of those in his 157 87 135 554 L-ed 235 601 382 601 708 6011002 61f 266 Statement of the Case. service, by providing them with machinery reasonably safe and suitable for use, and if he fails in this duty, he is responsible to them for any injury which may happen to them through a defect of machinery which was, or ought to have been known to him, and which was not known to the employés; but if an employé, who is injured by reason of a defect in such machinery, knew of the defect which caused it, and remained in the service of his employer, and continued to use the defective machinery without giving notice thereof to him, he must be deemed to have assumed the risk of all danger reasonably to be apprehended from such use. When a person employed by another to labor in connection with machinery, is wanting in such reasonable care and prudence as would have prevented the happening of an accident and is injured by the machinery, he is guilty of contributory negligence, and his employer is thereby absolved from responsibility for the injury, although it was occasioned by defect in the machinery and through the negligence of the employer. The question of contributory negligence is, as a general rule, one for the jury, under proper instructions by the court; especially where the facts are in dispute, and the evidence in relation to them is such that fairminded men may draw different conclusions from it. A court may refuse to give a requested instruction when it has already given substantially the same instruction in its own language. L-ed 235 109f 450 135 554 34 L-ed 235 117 f 464 e118 f 214 e118 f 215 119 f 293 THIS was an action on the case brought in the Supreme Court of the District of Columbia by Lewis H. McDade against the Washington and Georgetown Railroad Company, s10 SC 1044 a District corporation, to recover damages for personal injuries sustained while employed by the company, as a blacksmith, in its shops in Georgetown. The injury consisted in the loss of his left arm, which was caught in a belt used to propel a part of the machinery in the company's shop, and thereby so broken and mangled that it had to be amputated near the shoulder immediately after the accident. The declaration alleged that the defendant was a corporation and owned and operated a horse railway in the city of Washington and District of Columbia, and certain machinery for the construction and repair of the tracks, cars and other appliances and implements used in connection therewith; that on the 5th of February, 1883, the plaintiff was in the employ of the defendant, as a blacksmith, and was required by defendant, from time to time, to put and place a certain belt upon a pulley attached to a counter-shaft, when the same was in motion, to communicate power and motion from the machin Statement of the Case. ery in the machine shop of the defendant to the fan and drill press used by plaintiff in the blacksmith shop; that the said machinery and appliances were defective and dangerous, in that there was no loose pulley and lever or shifter for the purpose of putting the belt on and removing it from the first named pulley, but that plaintiff had no notice or knowledge thereof, being unused to and unskilled in such machinery and appliances; that the defendant, its servants and agents knew that the same were defective and dangerous, but failed to notify the plaintiff thereof; that on the 5th of February, 1883, the plaintiff, while ignorant of such defect and danger as aforesaid, was, at the defendant's request, engaged in the act of putting said belt on the first-named pulley, and by reason of such defect and dangerous condition of the machinery, and, without any fault or negligence on his part, was caught in or struck by said belt with great force, and his left arm was severed thereby, by means of which he was made very sick, sore and lame for a long space of time, and suffered great anguish of body and mind, and was crippled and disabled for life from the performance of his usual trade and labor as a blacksmith; that he was put to great expense and trouble in trying to be healed and cured of said wound and sickness; and that he paid large sums of money for medical attendance, medicines and nursing, to his damage the sum of twenty thousand dollars. The defendant pleaded the general issue, and defended, mainly, upon the ground that the plaintiff was guilty of such contributory negligence as precluded a recovery for the injuries sustained. The case coming on for trial before the court and a jury, the plaintiff, to maintain the issue on his part, testified, in substance, as follows: He entered the service of the defendant as a blacksmith, at its shops in Georgetown, on the 1st of May, 1881, and continued there until the time of the, accident on February 5, 1883. When he first went there he worked at the same forge with a man named Eckrit, who was head blacksmith, but at a different fire, they making and repairing the irons used in the manufacture of street cars. In the same Statement of the Case. room, which was about forty feet square, at a separate forge, a man named Morgan made horseshoe nails. Eckrit left the service of the defendant a few months afterwards, and one Parsons was then employed as an assistant to the plaintiff, who had been made chief blacksmith. The blast of air used at their forge was supplied by a fan propelled by an engine which ran all the machinery in the shops by means of shafts, pulleys and belts, and was situated in an adjoining room connected with the blacksmith shop by a door in the partition wall. The main shaft was in the engine-room. In the blacksmith shop there was a countershaft, three and one-half to four inches in diameter, about twelve feet from the ground and thirty inches from the wall, to which motion was communicated by means of a belt running on a fixed pulley attached thereto, and on another fixed pulley on the main shaft, and passing through a small opening in the partition wall for that purpose. The belt which directly gave motion to the fan was about three or four inches wide, and ran on a small fixed pulley attached to the fan, and on a fixed pulley about thirty inches in diameter attached to the counter-shaft by means of a screw projecting about an inch and a half above the hub of the pulley. The latter pulley, when the machinery was in motion, revolved about 180 times per minute. Another fan in the blacksmith shop, propelled in like manner, furnished a blast of air for the forge at which Morgan worked; and a drill press in the same room was propelled by means of a belt running on a pulley affixed thereto, and on a fixed pulley on the counter-shaft. Perhaps on an average once a week the engine and a portion of the machinery was run in the evening or at night, after work in the blacksmith shop had ceased for the day, and the belt used to propel the fan was then thrown off the pulley on the counter-shaft, sometimes by the plaintiff, but generally by some one else in the employ of the defendant. During the time that Eckrit and the plaintiff were both in the employ of the defendant, Eckrit always put the belt on when it had been taken off, except when it was taken off for repairs; and whenever such repairs were needed, one Moore, who kept in repair Statement of the Case. all the belting in the shop, would take it off and put it on again, but never at any other time. After Eckrit left, the plaintiff was directed to take the place of Eckrit at the forge, and all the time until the injury, a period of sixteen or eighteen months, he habitually put on the belt whenever he found it off, except when it was taken off for repairs, supposing it to be a part of his duty. The first time it was off after Eckrit left, he called the attention of the engineer, Mr. Kline, to the fact that the belt was off, who said, "Can't you put it on?" to which plaintiff replied, "I suppose so," and then put it on. Hawk, the foreman of the shops, from whom plaintiff received his orders, never gave him any instructions what to do, except that he should take Eckrit's place, and both he and Saylor, the superintendent of the company, often saw the plaintiff put the belt on, but never gave him any instructions about it, or informed him that it was Moore's duty to put the belt on when it had been taken off, and not to do it himself. Plaintiff knew that it was Moore's duty to repair the belts, and put them on the first time after they had been repaired, but never knew that it was Moore's duty to put them on at any other time, and Moore never did put on this belt at any other time. He further testified that he was 53 years of age, and had been a blacksmith since he was 17, having worked in Washington and Baltimore, the latter city being where he had learned his trade, but that he was ignorant of machinery, never before having been employed in a shop where the blast of air for the forge was created by machinery but once, and in that instance the fan was two hundred feet off, and not in the shop; and that the belt connected with the fan in the defendant's shop was the only belt he ever put on. In order to put the belt on the large pulley on the counter-shaft it was necessary to use a movable ladder about twelve feet long, placed against the partition wall. In going up this ladder his back might touch the shaft, and the face of the pulley was nearer the wall than his own face; and in placing the belt on the pulley he would turn his face towards the pulley. On the morning of the accident the plaintiff went to the shop a few minutes before 7 o'clock to commence work, |