Gutridge v. Missouri Pac. Ry. Co.

• Decision Date: 30 June 1891
• Parties: GUTRIDGE v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

16 S.W. 943

105 Mo. 520

GUTRIDGE v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

June 30, 1891.

INJURY TO SERVANT — DEFECTIVE APPLIANCES — LATENT DEFECTS — EVIDENCE.

1. Where a defective hand-hold on a car causes the death of one of the employes, it is a question for the jury whether the company could, by the exercise of ordinary care, have discovered the defect, notwithstanding it is shown that the defect was not apparent to the eye.

2. In a suit for wrongful death caused by a defective hand-hold on a car, plaintiff can prove the condition of the hand-hold and car after the accident.

Appeal from circuit court, Henry county; D. A. DE ARMOND, Judge.

H. S. Priest and W. S. Shirk, for appellant. Fyke & Calvird, for respondent.

THOMAS, J.

This cause was reversed on a former appeal because of error in the admission of evidence. 94 Mo. 468, 7 S. W. Rep. 476. The same questions that were determined on the former appeal are presented to us for decision now. In the opinion of Judge BLACK in this case, when it was here before, the facts are sufficiently stated, so that we do not deem it necessary to repeat them now. Defendant contends, it is true, that the evidence is materially different now from what it was then; but upon examination we do not find this contention well founded. Although the question was decided on the former appeal, it has been earnestly urged before us that the trial court ought to have sustained defendant's demurrer to the evidence. We have been pressed in this case, as in many others, to constitute this court a jury for the determination of an issue of fact. This the court has no right to do. It is, of course, our duty to ascertain whether there is any substantive evidence to go to a jury, and, if we find there is, we have no authority to usurp the province of the jury, and dispose of the issue of fact raised by such evidence. In this case there is no evidence that defendant knew of the defect in the hand-hold which gave way, and resulted in the death of plaintiff's husband. But could it, by the exercise of ordinary care, have discovered it? This question was submitted to the jurors by appropriate instructions, and they answered it in the affirmative. Defendant now asks us to declare as a mattter of law that defendant could not, under the circumstances of this case, have discovered the defect by the exercise of ordinary care. Judge BLACK, on the former appeal, held that there was sufficient evidence to authorize the submission of the question to the jury, and we see no reason to hold otherwise now. That the evidence tended to prove that the car was an old one, and that the wood where the hand-hold was attached by means of screws was somewhat decayed, there is no question. But as to the appearance of the wood, and the hand-hold before it came off, there is no evidence, and it is claimed for that reason the case ought to have been taken from the jury. It was the duty of the defendant to furnish reasonably safe appliances for its servants in the performance of their duties, and to exercise ordinary care in keeping them in repair Defendant is not an insurer of the absolute safety of these appliances. It performs its duties to its employes when it exercises ordinary care in selecting and keeping them in repair. The employe must also exercise ordinary care in their use. The difference in the duty of the master and servant is, the master is bound to look for defects, while the servant is bound only to discover what the ordinary use of the appliance would make known to a man of ordinary prudence. The master is held to know the defect if by the exercise of ordinary care he might know it. The servant has a right to assume that the master has furnished him safe machinery, unless its condition is such that by the exercise of ordinary care he would have discovered its defect. In this case it is argued that the fact that the deceased did not discover the defect in question is strong, indeed conclusive, evidence that it could not have been discovered by the exercise of ordinary care. There is a wide difference in the inspection of an appliance for the purpose of ascertaining its condition and the use of the appliance upon the assumption it is safe. It was defendant's duty to inspect this hand-hold, and if, upon inspection in the usual way with the usual care in such cases, the defect was not discovered, liability would not have attached. That there was no inspection of this hand-hold is beyond question. But it is claimed that inspection would have been fruitless, and we are asked to declare as a matter of law that it would have been fruitless. We cannot do this....