Gentlemen of the Jury:

The plaintiff in this action seeks to recover from the defendant company damages for personal injuries which are alleged to have been sustained on account of the negligence of said company.

The plaintiff claims that about eleven o’clock on the night of August 14, 1911, he was motoring a car of the defendant, and that because of defective brakes on the car, which would not take hold of the wheels, he was unable to stop or hold the car when descending a certain grade, and in consequence thereof his car collided with another car and he was injured.




The plaintiff’s declaration consists of two counts, one of which avers that the said defendant negligently and carelessly suffered and permitted the said plaintiff to use and operate a certain car with an improper, unsuitable and dangerous brake-shoe, all of which was well known to the said defendant but unknown to the said plaintiff, and by reason of the said negligence of the said defendant in permitting the use of said car with the defective brake-shoe as aforesaid at the time and place aforesaid, the said car on which the said plaintiff was a motorman as aforesaid ran into and collided with another car operated and controlled by the said defendant, whereby the said plaintiff was greatly bruised, cut, mangled, broken, injured, and distressed.










The second count is similar to the first, except that the word “brakes” is used in the second county instead of “brake-shoe” in the first count.




So that the negligence averred, and relied upon, by the plaintiff is, that the defendant suffered and permitted the plaintiff to use and operate the car with a defective, unsafe, and dangerous brake-shoe, or brakes.




The gist of this action is negligence, which is the want of ordinary care, and the burden of proving the negligence of the defendant rests upon the plaintiff. If there was no negligence on the part of the company, your verdict should be for the defendant. Even if there was negligence on the part of the defendant, yet if the negligence of the plaintiff contributed proximately to the accident at the time thereof, the plaintiff cannot recover. In such case the plaintiff weald himself be guilty of contributory negligence, and where there is such negligence the law will not attempt to measure the proportion of blame or negligence to be attributed to each party.



Contributory negligence has been defined to be the negligence of the plaintiff, or of the person on account of whose injury the action is brought, amounting to a want of ordinary care, and approximately contributing to the injury.


The relation existing between the defendant and the plaintiff at the time of the accident was that of master and servant, and the primary duty imposed upon the defendant towards the plaintiff in the course of his employment by reason of this relation was to furnish him reasonably safe tools, machinery and appliances with which to work.






The tools or machinery used need not be of the safest, best, nor of the most improved kind. It is sufficient if they are reasonably safe, and adapted to the purpose of the employment.



If the master fails to observe this rule of law, and injury results to his servant from such failure, he becomes liable therefor on the ground of negligence.



In the performance of this duty the master must use all reasonable care and prudence for the safety of the servant, having regard to the character of the work to be performed.


Such care must be in proportion to the danger of the employment.

The servant has the right to rely on the master for the performance of this duty without inquiry on his part.



The servant assumes no risk whatever as to such primary duty at the time he enters upon his employment; but he does assume all the ordinary risks incident to the employment; such as are patent, seen and known, or which may be seen and known by the ordinary use of his senses.







And he is required to exercise due care and caution in the course of his employment to avoid dangers and injuries; for the master, having performed the primary duties required of him, is not an insurer of the safety of his servants.




It is the duty of the master also to maintain said tools and machinery in a reasonably safe condition so long as they are continued in use.

If the master knows, or by the use of due diligence might know that the tools and machinery in use in his business are not reasonably safe, it is negligence on his part to fail to remedy and correct the defects of which he has knowledge, or by the exercise of due diligence he might discover.






Notice to the foreman or person in general charge of the business, or having charge and control of the men and the cars, that the machinery is unsafe and dangerous, is, in law, notice to the master; and after the receipt of such notice it would be negligence on the part of the master to fail to make such machinery reasonably safe for the servant in his employment.









But in such case the master would not be liable if the servant having knowledge of such defect continued to use such machinery.

The servant must always exercise such care and caution to avoid danger as the circumstances reasonably require, and the greater the danger the greater the care, diligence and caution required.





But even though machinery is defective in the knowledge of the employee, yet if the master has knowledge of such defect and promises to remedy the defect, and the employee, relying on that promise, continues by direction of the master to use it for a reasonable time, he does so at the master's risk, inasmuch as he has a right to rely on such promise.










If you should believe from the evidence that the defendant exercised reasonable care in the inspection of the trolley car which the plaintiff was operating at the time of the accident, and that the brakes of said car, or other appliances complained of, when last inspected before the accident, were in reasonably good working condition and that any defect or disorder, if there was any, in any of said appliances was not discovered sufficiently long before the accident so as to reasonably permit the repair thereof or the discontinuance of the operation of such car, in such event the existence of such defect or disorder would not constitute negligence on the part of the defendant.









If you should believe from the evidence that the defendant exercised reasonable care in the inspection of the car in question and of the brakes and other appliances thereon, and that the same were found in reasonably good working condition when the car was turned over to the plaintiff to operate as a motorman, shortly before the accident, and that any defect or disorder, if there was any, in said appliances, occurred during the operation of the car by the plaintiff, and that there was no opportunity to repair the same or discontinue the use of the car before the accident—