Burns v. N.Y., P. & B. R. Co.
| Decision Date | 07 May 1892 |
| Citation | 38 A. 926,20 R.I. 789 |
| Parties | BURNS v. NEW YORK, P. & B. R. CO. |
| Court | Rhode Island Supreme Court |
Action by George E. Burns, administrator, against the New York, Providence & Boston Railroad Company, to recover for the killing of plaintiff's intestate. Petition by defendant for new trial. Granted.
George T. Brown, for plaintiff.
Walter B. Vincent for defendant.
In this case the testimony does not show whether the deceased was thrown from the train by the breaking of the spindle, or whether he fell from the train, and the sudden strain upon the spindle, occasioned by the passing of the wheels of the train over his body, caused the breaking of the spindle. But assuming that it was the breaking of the spindle which caused the deceased to fall from the train, and which occasioned his death, the testimony fails to show negligence on the part of the defendant. It is claimed that the defendant was negligent, in that it did not inspect the spindle at stated times by removing it from the drawbar. The testimony of the defendant shows that its freight cars are regularly inspected at each end of the route,—providence and Worcester,—and that in such inspection the "drawbars and drawrigging" are examined, and that such inspection, so far as it relates to the spindle, is made by the inspector getting under the car and examining such portion of the spindle as is in sight, to wit, the end which projects beyond the drawbar. It is contended on the part of the plaintiff that this inspection was insufficient, because the spindle was not removed from the drawbar, and that the defect which caused it to break was within the drawbar, so that it could not be discovered without removing it from the drawbar. On the other hand, it was contended by the defendant that the only inspection that is, or ever has been, deemed necessary by railroad men, is the inspection made by its employes, since the weakest portion of the spindle is at the slot through which the key is inserted to hold it in its position, and that this portion of the spindle can be, and is, inspected in the manner stated, without removing it from the drawhead; that the breaking of the spindle in question, within the drawbar, was very unusual, if not unprecedented, and was due to a flaw in the iron, which could not have been discovered without breaking the spindle, had it been removed from the drawhead. The plaintiff, in reply, contended that the spindle, instead of having a flaw in it, was cracked,...
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