may be supplied by proof of a violation of the Federal Safety Appliances Act, 45 U.S.C. § 1 et seq. and while such a violation was alleged in the pleadings, there was no evidence of any nature at the trial which would establish a violation of said Act. No part of any equipment or appliances which are covered by said Act were involved in the plaintiff's injury in this case. The employer is not an insurer of its employees' safety, and negligence is not presumed by proving that an accident occurred. It must be shown that the employer, with the exercise of due care, could have reasonably foreseen that a particular condition could cause injury.
An employer has a duty to use ordinary care to furnish his employees with a reasonably safe place to work and reasonably safe equipment to work upon. The allegation in this case is that the defendant railroad furnished the car which was unsafe by reason of the defective and loose bridge plate. However, the railroad's knowledge, actual or constructive, of the danger from a hazardous condition is essential to the existence of negligence. Actual knowledge is not required if there is proof that the railroad could by reasonable inspection have discovered the defect.
This case presents a situation where the railroad did perform its duty of inspection and did discover the defect before that defect injured any employee. There is no evidence to show that this defective condition existed for any period of time before being discovered by the plaintiff. The evidence shows that the defective condition was discovered by the plaintiff who was the railroad's agent specifically charged with the duty of inspecting cars to discover defective or dangerous conditions. This condition was discovered by the railroad in the course of inspection by the plaintiff and it was not the defect itself which injured the party but the manner in which the plaintiff chose to remedy the condition.
The cases have held that where the injury arises because of the way in which an employee performs his job, the employer is not liable. Even under the Safety Appliances Act, where the defect in the particular appliance is negligence per se, the fact that the employee chooses a dangerous or risky manner in which to remedy the defect and consequently suffer injury does not impose liability on the employer. Rose v. Atlantic Coast Line R. Co., 403 F.2d 204 [4th Cir. 1968]. Similarly, in Wadiak v. Illinois Cent. R. Co., 208 F.2d 925 [7th Cir. 1953], the plaintiff undertook a dangerous manner of performing his duty at the suggestion of a fellow employee who was not his immediate superior. In language particularly applicable to the case at bar the court stated:
"He was not injured because he did not have equipment, for he had access to sufficient and adequate tools and devices. He was injured because he saw fit not to use the equipment but to ignore it and to handle the barrel manually. He was not injured because he needed help and did not have it but because he saw fit not to ask for help. He was not injured because the car had been improperly loaded and carried by defendant in such condition, but, because, when he was directed to repair the condition, without approaching his superior, he voluntarily adopted a dangerous method of doing so instead of a safe one. He was at the car solely because it needed repairs; indeed it was his duty to make those repairs. How the damage which he was to rectify had come about and who had caused it was wholly immaterial. He faced a fact; the car was damaged, it was his duty to repair, he and his partner had the choice of methods; nothing was done by defendant causing the injury incurred in his voluntary choice of how best to do his duty. The law imposes no liability under such circumstances." (emphasis supplied) (p. 930)