Fordyce v. Edwards

• Decision Date: 20 April 1895
• Citation: 30 S.W. 758
• Parties: FORDYCE et al. v. EDWARDS.
• Court: Arkansas Supreme Court

30 S.W. 758

FORDYCE et al. v. EDWARDS.

Supreme Court of Arkansas.

April 20, 1895.

Appeal from circuit court, Jefferson county; John M. Elliott, Judge.

Action by C. H. Edwards against S. W. Fordyce and others, receivers of a railroad company. From a judgment for plaintiff, defendants appeal. Reversed.

The appellee, C. H. Edwards, was a locomotive engineer in the employ of the appellants. The engine which he operated was derailed and thrown from the track by striking a horse. The appellee was injured, and he brought suit, alleging, in addition to other matters, that the injury was occasioned by the negligence of appellants in furnishing him with a locomotive with a pilot raised so high above the track that the locomotive was dangerous to operate. The appellee testified that the pilot was raised about seven inches above the track, when it should have been only about four inches above it; that, if the pilot had been only four inches above the track, it would have lifted the horse, and thrown him from the track, but that, instead of throwing the horse from the track, the engine ran over him, thus causing the derailment of the engine, and the injury to appellee. He further testified that at the time he took charge of the locomotive for the trip on which the injury occurred it was standing in a depression of the track, and for that reason he failed to discover the condition of the pilot before commencing the trip; that he first discovered its condition after he had started on his journey, and that, as the engine was drawing a passenger train, and carrying the mail, he concluded to proceed, believing that he could do so safely by the use of great care; that he continued to exercise the utmost care, but, a horse coming suddenly upon the track, he could not avoid striking him, and the injury resulted.

Among other instructions, the court, at request of appellee, gave the jury the one following, numbered 2: "The plaintiff had the right to presume that the engine furnished him by the defendants was in good condition, and he was not required to inspect the same for defects; and if the jury find from the evidence that during the course of the trip he discovered that, owing to the use of an improper spring under the locomotive, the same had become more dangerous, then, by remaining in the performance of his duties, he did not assume the increased risk occasioned by such defect, unless the jury believe from the evidence that the increased risk was so hazardous that a reasonably prudent man, situated as the plaintiff was, would not have continued in the performance of his duties." To the giving of this instruction the appellants duly objected and excepted at the time.

Sam H. West and J. M. & J. G. Taylor, for appellants. N. T. White, H. King White, and W. T. Wooldridge, for appellee.

RIDDICK, J.

We do not discover any material error in this case, except the rule announced by the court in the first portion of instruction No. 2. That instruction told the jury without qualification that the appellee "had the right to presume that the engine furnished him by the defendants was in good condition, and he was not required to inspect the same for defects." This is a correct statement of the law when speaking of latent defects. For such defects the servant is not required to look, but he must look for and take notice of defects that are obvious, and that can be discovered by ordinary observation. He cannot go blindly ahead, regardless of consequences, but he must use his eyes, and make such inspection as ordinary care would require of one whose duty it is to take notice of obvious defects. Railway Co. v....