Dedrick v. Missouri Pac. Ry. Co.
| Decision Date | 05 April 1886 |
| Citation | 21 Mo.App. 433 |
| Parties | PERRY DEDRICK BY NEXT FRIEND, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Cooper Circuit Court, HON. E. L. EDWARDS, Judge.
Affirmed.
Statement of case by the court.
Plaintiff being a minor sues by his next friend. He complains that being in the employ of defendant as a section hand and while in the performance of his duty with due care, he was injured while operating a hand car, on account of the breaking of the lever or " pump handle." He charges that the handle was defective and decayed and wholly insufficient for the purposes for which it was intended to be used. That the defendant knew of the defect and insufficiency, or, by reasonable precaution and care, might have known of it, and that he was wholly ignorant of such defect. The answer affirmed the soundness, safety and sufficiency of the handle.
On trial plaintiff recovered a judgment for $1,400.00 and defendant appeals.
THOMAS G. PORTIS and WILLIAM S. SHIRK, with THOS. J. PORTIS, for the appellant.
I. The theory of the petition is that defendant was negligent in failing to provide, for the use of its employes, a hand car reasonably safe and sufficient for the purpose, there being a defect in the handle or lever of the car so provided by defendant. There is no evidence that defendant knew, or had any opportunity to know, unless it can be held that the knowledge of Salin and the foreman, and their negligence, can be imputed to the defendant. There was no negligence on the part of the defendant, or of any agent empowered to act for it, in providing the handle which caused the injury, and there was no case to submit to the jury. 2 Rorer on Railroads 1216; 3 Wood's Ry. Law, sect. 370; Siela v. Railroad, 82 Mo. 435.
II. The section foreman Doyle, and the other laborer, Salin, were both fellow servants of the plaintiff, and he cannot recover for any acts of negligence on their part. Blessing v Railroad, 77 Mo. 410; McGowan v. Railroad, 61 Mo. 528.
III. Under the evidence in the case he must be held to have had knowledge of defect, if there was any, and to have assumed the risk, and for this reason the case should have been taken from the jury. Keegan v. Kavanaugh, 62 Mo. 232; Hulett v. Railroad, 67 Mo. 239; Porter v. Railroad, 71 Mo. 78; Nolan v. Shickle, 3 Mo.App. 300. The demurrer to the evidence and to the whole case should have been sustained.
DRAFFEN & WILLIAMS, for the respondent.
I. It was defendant's duty to furnish to its servants good safe, and properly constructed machinery and implements for carrying on its business. If it entrusted this duty to the section foreman, and he was negligent, it is the negligence of defendant. Siela v. Railroad, 82 Mo 430; Lewis v. Railroad, 59 Mo. 473; Condon v. Railroad, 78 Mo. 567; Covey v. Railroad, S.Ct. Mo. Nov. 16, 1885.
II. The fact that the section foreman, for many purposes, is to be regarded as a fellow servant of plaintiff, does not make him a fellow servant, while exercising the functions of a master, in furnishing or repairing machinery. If the rule was otherwise, a corporation could entirely escape liability by putting a two-fold duty upon its servants appointed to " furnish good machinery and a safe track." The foreman stood in place of defendant in these respects. Covey's case, supra.
III. The duty to provide safe machinery is a continuing one. If Doyle was not authorized to repair the defendant was bound to have some one to do it. 2 Thompson on Negl. 984.
IV. The master is chargeable with the knowledge which he might have acquired by the exercise of due care. Porter v. Railroad, 71 Mo. 67. The jury were justified in finding as they did, that plaintiff had no notice of the defect, and that it was not so patent that he must be held to have known it.
V. It is not incumbent on the employe to search for latent defects in machinery or implements furnished him by the employer. He has the right to assume that they are safe and sufficient for the purpose. Porter v. Railroad, 71 Mo. 69; Covey v. Railroad, supra.
VI. The evidence fully warranted the finding of the jury. The court properly refused to sustain a demurrer to the evidence, for the evidence fully sustains the verdict of the jury.
The only question presented to us by the appellant is as to the plaintiff's case on the evidence. A demurrer was interposed at the close of plaintiff's...
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