Brinkmeier v. The Missouri Pacific Railway Company

• Decision Date: 07 July 1904
• Docket Number: 13,765
• Parties: HENRY BRINKMEIER v. THE MISSOURI PACIFIC RAILWAY COMPANY
• Court: Kansas Supreme Court

77 P. 586

69 Kan. 738

HENRY BRINKMEIER v. THE MISSOURI PACIFIC RAILWAY COMPANY

No. 13,765

Supreme Court of Kansas

July 7, 1904

Decided July, 1904.

Error from Sedgwick district court; D. M. DALE, judge.

Judgment reversed and cause remanded.

C. V Ferguson, for plaintiff in error.

J. H Richards, and C. E. Benton, for defendant in error; David Smyth, of counsel.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

While serving the defendant in the capacity of brakeman the plaintiff was injured in an attempt to couple freight-cars. In an action for the recovery of damages a demurrer to his evidence was sustained, and the railroad company justifies the conduct of the trial court upon three grounds: (1) That it had no notice of the defect in the appliance causing the injury; (2) that the hazard was one incident to plaintiff's employment, and therefore assumed; (3) that the plaintiff was guilty of contributory negligence.

The defective appliance was a part of the equipment of one of the defendant's own cars, and the defect itself was alleged to be one originating in faulty construction. If this be true, proof of notice was unnecessary. It was the duty of the defendant to furnish a properly constructed coupling apparatus. Whether the defendant built the car itself, or employed others to do so, or purchased it of reliable car manufacturers, it was bound to know the condition of the coupling contrivance when the car was put into service, and it will not now be heard to say that it had no knowledge of patent, original, structural defects. (Greenleaf v. Illinois Central Railroad Company, 29 Iowa 14, 46.)

In volume 20 of the American and English Encyclopedia of Law, second edition, page 93, occurs the following accurate summary of the authorities:

"Where the defect through which the injury occurs is in the original construction of the appliance or instrumentality, notice thereof to the master is unnecessary. In case of structural defects, knowledge thereof by the master will be inferred. This doctrine is no more than an application of the general rule that it is the master's duty to exercise ordinary care in providing tools, machinery and appliances that are reasonably safe."

In the case of Alexander v. Town of Mt. Sterling, 71 Ill. 366, 369, the language of Chief Justice Breese regarding the duty of a municipality to know the character of a structure it supplies for the use of its inhabitants is pertinent to the attitude of a private corporation toward its employees. He said:

"For the proper construction of this sidewalk, it is not denied the town authorities were responsible. They should see to it that such structures are properly made and reasonably safe, and they must be kept so. They, being the projectors of them and the builders of them, are, in law, held to a knowledge of their original condition. It would be absurd to say, they must have notice of the original defect, when they themselves are the authors of the defect. Why notice to a party of original defects in a work he is bound to make safe and reasonably free from defects? The town being in fault at the outset, no notice was necessary."

In the case of Finnerty v. Burnham, 205 Pa. 205, 54 A. 996, decided in 1903, an injury occurred from the use of a defective chain in the equipment of a crane. The master supplying the crane attempted to justify on the ground that the chain had been purchased of one of the most reputable manufacturers, and placed in stock; that others of a similar kind had been furnished, so that the employee could select any one he desired; and that general instructions had been given to report, and have repaired, any defects. But the court adopted in full the statement of the law already quoted from the American and English Encyclopedia of Law, and further held:

"Where a chain is used as an attachment to a crane for the purpose of lifting very heavy weights, the same rule that imposes upon the employer the duty of supplying a reasonably safe and suitable crane requires him to furnish a chain of like character."

The defendant cites certain decisions of this court supposed to favor a different doctrine, but their real purport is misapprehended. Only the general formulas of the law relating to notice of defects were refered to in those cases, and the particular rule under consideration was not discriminated.

The plaintiff was injured while attempting to adjust a draw-bar with his foot, in order to effect a coupling. His evidence tended to prove that when properly constructed the draw-bar is in the center of the car and is held in place by heavy timbers on each side of it, called draft-timbers. Above the neck of the draw-bar is a piece of timber, and below it a strap or plate of iron, both held fast by bolts running through the ends of the draft-timbers. The draft-timbers should be near enough together to prevent the draw-bar's becoming out of line, and in order to secure a snug fit a large bolt is passed down from the timber above on each side of the draw-bar between it and the draft-timber and through the plate beneath. The car in question had been constructed without the bolts necessary to prevent the lateral play of the draw-bar, and the draft-timbers were so far apart that, when pushed to one side, the head of the draw-bar failed to meet squarely the head of the draw-bar on the car to be coupled, but passed by it, and crushed the plaintiff's foot. A spectator of the accident described the draft-timbers as worn and "slivered up," but the testimony of that witness, as well as that of the plaintiff, clearly showed the primary defect to be one of construction, and the case should have been submitted to the jury, so far as the question of notice to the defendant was concerned.

The contention of the defendant that the plaintiff assumed the risk of injury is based upon his testimony that it was not unusual for draw-bars to be...