The Pennsylvania Company v. Whitcomb, Administrator.

ordinarily safe machinery and appliances are provided. If machinery of an unusual and more dangerous character is provided, and the employee has no notice of the danger, then he does not assume the risk attendant upon its use. more, etc., R. R. Co. v. Rowan, supra.

Balti

If the deceased continued in the master's service after the danger of coupling cars was made known to him as incidental to his service, he voluntarily assumed the risk, and it is very doubtful whether the complaint is good. This we say because it does not aver that the cars were not ordinary ones and the danger from coupling them an unusual one. But as no assault is made upon the complaint, we do not pass upon its sufficiency. It is necessary, however, to speak of the character of the complaint, for the question is, whether the answer is good to the complaint as drawn, and not whether it would be good in any case. It is difficult, we may further add, to perceive how this action can be maintained without showing that the danger was not incident to the service, or the cars of an unusual kind, but on this phase of the subject we express no direct opinion.

The circular warns the employees that the coupling of all cars by hand is dangerous. Its warning is not confined to cars of a particular class, but it extends to all kinds and all classes. Nor is it simply a warning notice. It is much more. It is a warning and a direction. It instructs all employees to couple all cars with a coupling-stick, and forbids the coupling by hand. This is its legal meaning and effect. By clear and necessary implication, it forbids the coupling of cars by hand and commands that it be always done by the instruments provided for that purpose. We very much doubt whether an employee who remains in service after such a warning, and who disobeys the instructions received from his employer, can recover without, at least, affirmatively showing that obedience would have caused greater danger than disobedience, or that obedience was not practicable under the circumstances of the particular case.

The Pennsylvania Company . Whitcomb, Administrator.

Buzzell v. Laconia Man'f'g Co., 48 Maine, 113; Frazier v. Pennsylvania R. R. Co., 38 Pa. St. 104; Mad River, etc., R. R. Co. v. Barber, 5 Ohio St. 541; Senior v. Ward, 1 El. & El. 385.

It is difficult to conceive any principle upon which an employer can be held liable to an employee who disobeys instructions without cause or excuse. Analogous cases seem to declare against the right of recovery; for, to mention one of many, even a passenger who violates, without excuse, the rules of a carrier, can not maintain an action. We are strongly inclined to the opinion that where there is a disobedience of instructions there can be no recovery by the employee, unless he shows that obedience would have augmented the danger, or that it would have been impracticable. But we need not decide this question, for the answers carry us beyond it. While it is not necessary to decide the questions we have just adverted to, it is, nevertheless, proper to speak of them, since what we have said is logically connected with what follows upon the ruling question in the case.

We regard the circular and the acts performed under it as constituting a contract. By formally acknowledging the receipt of the circular and continuing in the service of the company, the decedent made its terms part of the contract with his employer. It was in the nature of a statement to him of the terms upon which the company would continue him in its service. It asserts, if not in express terms, by clear implication that cars must not be coupled by hand, that they must be coupled by the use of the appliances provided, and that if they are coupled by hand the company will not be liable for injuries received by its employees. These are the terms of the contract of hiring. There are many cases in the books holding that the rules adopted by the employer and made known to the employee enter into and form part of the contract. Payne v. Western, etc., R. R. Co., 13 Lea (Tenn.) 507 (49 Am. R. 666); Carew v. Rutherford, 106 Mass. 1 (8 Am. R. 287); Heywood v. Tillson, 75 Maine, 225

The Pennsylvania Company v. Whitcomb, Administrator.

(46 Am. R. 373); Collins v. New England Iron Co., 115 Mass. 23; Bradley v. Salmon Falls, etc., Co., 30 N. H. 487.

It is, indeed, not simply the right of the employer to adopt proper rules, but it is his duty to do so. Abel v. President, etc., 103 N. Y. 581 (57 Am. R. 773); Vose v. Lancashire, etc., R. W. Co., 2 H. & N. 728; Haynes v. East Tennessee, etc., R. R., 3 Cold. 222.

Even in the case of a passenger, the rule is that the regulations of the carrier enter, to some extent at least, into the contract of the parties. Chicago, etc., R. R. Co. v. Bills, 104 Ind. 13; Western Union Tel. Co. v. Harding, 103 Ind. 505, 511; Ohio, etc., R. W. Co. v. Applewhite, 52 Ind. 540; Pittsburgh, etc., R. W. Co. v. Nuzum, 50 Ind. 141 (19 Am. R. 703).

It is obvious that a business requiring the employment of many persons could not be properly conducted without a system of rules, and it is equally clear that the rules would be of little force unless they formed a part of the contract between the employer and employee. If they did not constitute an element of the contract, they would protect neither the master nor the servant, and unless the master may prescribe rules and exact obedience to them, he can not control his own business. It seems quite clear on principle that the employer may adopt reasonable rules, and that when brought to the knowledge of the employee they constitute an element of the contract. The decided cases recognize this general rule, although there seems to be some difference in the course pursued in giving it practical effect. Ford v. Fitchburg R. R. Co., 110 Mass. 240; Sprong v. Boston, etc., R. R. Co., 58 N. Y. 56; Memphis, etc., R. R. Co. v. Thomas, 51 Miss. 637; Louisville, etc., R. W. Co. v. Frawley, 110 Ind. 18.

Where a person enters the service of another, knowing the rules prescribed by his employer, he impliedly undertakes to obey those rules, and this undertaking enters into his contract. An undertaking implied by law is as much a part of the contract as its express stipulations. Long v.

The Pennsylvania Company v. Whitcomb, Administrator.

Straus, 107 Ind. 94. It needs but little argument to prove that one who enters a service governed by rules which are known to him, contracts to perform service under those rules. It is evident that this must be so, or else the cases which hold that it is a breach of duty on the part of the master not to make rules, as well as those which hold that it is a breach of duty for the employee to violate them, are not well decided, and that they are not correctly decided can not be granted; so that the conclusion must be, that the rules form an element of the contract of service. If regulations are not part of the contract, then they create no duty on the part of the master and impose no obligations on the employee. If there is no duty there is no liability, and yet, as we have seen, the cases all agree that there is a liability where there is a breach of known rules.

It can not be possible that a servant may discharge his duties as he sees fit regardless of the rules prescribed by the master. To affirm that he can would be to strip the master of all authority over his own business, and leave him powerless to instruct or command. If the master has authority, and gives it expression in rules duly made known to his employees, they, by accepting service, agree, as part of their contract, that they will obey those rules. If this be not so, then there can be no systematic government of the master's business, nor any definite rule for determining the rights and duties of the parties where the relation of master and servant exists.

There is some conflict in the authorities upon the question. whether a contract exonerating the employer from liability for negligence is valid. Roesner v. Hermann, 8 Fed. Rep. 782; Western, etc., R. R. Co. v. Bishop, 50 Ga. 465. But we do not enter this field of conflict. It is not necessary for us to do so, because we need go no further than determine that a master may lawfully contract that his employees shall use certain designated appliances in performing the duties of their services. Our decision is, that the contract before us

The Pennsylvania Company v. Whitcomb, Administrator.

is a valid one so far as it affects the case made by the complaint, for we regard it as an undertaking that the employees shall use a designated appliance. It is not, so far as concerns the question now before us, a contract that the employer will in no event be liable, but it is an agreement that the employer will not be liable unless the appliances provided by him are used as he directs.

The contract applies to the coupling of all cars, and the employee agrees to use the coupling-stick in all cases. The employer had the right, therefore, to assume that the employee would not undertake to couple cars, no matter what their kind or class, without making use of the couplingstick. If a coupling could have been safely made with the coupling-stick, then there is no liability, whatever may have been the kind of cars the employee was required to connect. The employer was not bound to do more than provide such cars as might have been safely connected by the use of the appliance which the employee was directed to use. There can be no liability, at least, until it is made to appear that had the coupling-stick been used, still the duty of coupling could not have been safely performed, or that, under the circumstances, it was not practicable to use the appliance selected by the employer.

The presumption is, that the master has performed his duty. Hard v. Vermont, etc., R. R. Co., 32 Vt. 473; Wood Master and Servant, 708; 3 Wood Railway Law, 1468. This presumption the employee must overcome, for it stands, until overthrown, as a prima facie case. Nave v. Flack, 90 Ind. 205 (46 Am. R. 205). It must, therefore, be held that the appellant discharged its duty unless the contrary has been affirmatively shown, and this leads to the conclusion that the presumption is, in the absence of countervailing facts, that the appellant did provide such cars as might have been safely coupled by the use of the coupling-stick. It was incumbent on the appellee to overthrow this presumption, for until overthrown it stands in his way to a recovery.