St. Louis, Iron Mountain & Southern Railway Company v. Reed

• Decision Date: 15 November 1909
• Citation: 122 S.W. 645,92 Ark. 350
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. REED
• Court: Arkansas Supreme Court

122 S.W. 645

92 Ark. 350

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. REED

Supreme Court of Arkansas

November 15, 1909

Appeal from Marion Circuit Court; Brice B. Hudgins, Judge; affirmed.

Affirmed.

Kinsworthy & Rhoton, Horton & South, G. De M. Henderson and James H Stevenson, for appellant.

1. The evidence fails to show liability on part of defendant. The company is not liable for hidden defects of which it had no knowledge, and of which it could not have known by the exercise of ordinary care. A proper inspection would not have disclosed the defect in this case. 4 Ell. on Railroads §§ 3783-4; Labatt on M. & S. § 102; 146 Ind 564; 67 Ala. 13, 20. A railroad is not bound to adopt extraordinary tests to discover defects. 76 Ala. 494. The duty of the company was discharged if it used the same method and care in inspection of hand-cars as commonly used by other prudent and well-conducted railroads in its class, etc. Labatt on M. & S. ch. 5, etc., §§ 15-31, 163; 83 Ark. 318; 166 U.S. 617; 4 Thomp. Neg., §§ 3803 c, 3926; 39 N.Y. 408; 7 Lea (Tenn.) 367; 86 Va. 270; 20 R. S. 926; 34 Kans. 326; 109 Wis. 602; 42 Id. 520; 132 N.Y. 273; 38 Mich. 537.

2. The court erred in giving the second instruction, in refusing defendant's first and third. Authorities supra.

Jones & Seawel and Hamlin & Seawel, for appellee.

1. The evidence amply supports the verdict, and the court's instructions were the law. 88 Ark. 366. The defect presented such an exterior appearance, visible to the naked eye, as would have made it discoverable by an ordinarily careful inspection. 51 Ark. 479; 67 Id. 305; 87 Id. 217; 82 Id. 372; 87 Id. 443; 44 Id. 524; 24 U.S. App. 295; 152 U.S. 684; 116 Id. 642; 137 Ill. 129; 101 N.Y. 547; 107 Ala. 645; 135 Mass. 201; 140 Id. 175; 117 Ind. 564; 88 N.Y. 225; 26 Cyc. 1142; 91 Ark. 343; 4 Thomps. on Neg., §§ 3793-8; 78 Tex. 486; 197 Ill. 88, etc.

2. The defect being structural and of such a character as to render it unsafe, without regard to the crack, it might be inferred that the employer was aware of the defect. 26 Cyc. 1143 and notes.

OPINION

FRAUENTHAL, J.

The appellee, Thomas C. Reed, who was the plaintiff below, instituted this suit against the St. Louis, Iron Mountain & Southern Railway Company to recover for personal injuries caused by the breaking of the lever bar of a handcar. In November, 1907, he was in the employ of the defendant as a section hand, and in company with a number of the section crew was returning from work on a handcar furnished by the defendant. Upon the handcar was an upright bar, called a lever bar, with a handle at each end, by pumping which the car was propelled. The plaintiff and the other men of the crew were engaged in pumping the car when the lever bar broke about midway, and threw the plaintiff off backwards. He fell across the rail and on the ground between the rails. The car ran over him, and he was injured on his head, and his collar bone was broken, and he was otherwise severely hurt. He alleged that the defendant was negligent in failing to exercise ordinary care and prudence in furnishing him with a reasonably safe handcar, and in failing to use ordinary care and diligence in keeping same in a reasonably safe condition; that the lever bar was defective, and was known to the defendant to be defective, or could have been known by it to have been defective by the exercise of ordinary care; and that its defective condition was unknown to the plaintiff.

The defendant denied the allegations of the complaint, and alleged that if there was any defect in the lever bar it was as patent to the plaintiff as to the defendant, and denied that defendant was negligent in any particular. There was a former trial of this cause in the circuit court, and a verdict was returned upon that trial in favor of the plaintiff. From the judgment rendered upon that verdict the defendant prosecuted an appeal to this court. Upon the hearing of said appeal this court reversed the said judgment and remanded the cause for a new trial. The opinion of this court upon that appeal is reported in 88 Ark. 458 (St. Louis, I. M. & S. Ry. Co. v. Reed). In that opinion there is set out a synopsis of the material evidence given upon the first trial and also the instructions which upon that trial were given to the jury.

Upon the second trial of this cause in the circuit court all the witnesses who had appeared in the first trial testified, and their evidence is substantially the same as that given on the former trial. In addition to those witnesses, other witnesses gave evidence on this second trial. It appears from the evidence that the lever bar was made of cast iron, and that it broke on account of a structural defect consisting of a blow hole on the interior of the casting. This cavity was not visible from the surface of the bar, but immediately below the broken place there was on the exterior of the bar a place that appeared corroded or rusty. After the bar was broken, a rusty streak was seen running from the cavity to the surface of the bar for about an inch, and showed that the bar was cracked to the surface.

The additional evidence on the part of plaintiff upon the second trial tended to prove that at the place where the bar was broken the rusty streak "extended clear out to the surface," and that when upon the morning after the injury the two pieces of the bar were put together the rusty streak showed on the exterior of the bar for about one-half of an inch, and that a crack could be seen on the surface of the bar, and that this crack "was rusty and looked old." And by witnesses expert in their knowledge of this character of iron casting, and to whom was shown one piece of the broken bar, it was proved that if the rusty streak that appeared in the piece of the bar running from the cavity to the surface would have shown on the surface when the two pieces of the bar were placed together, then the crack could have been discovered by close inspection by the natural eye. There was also evidence tending to show that there was a depression on the surface of the bar near the blow hole; and one of the witnesses testified that this would denote a defect on the inside of the iron.

At the request of the plaintiff the court gave a number of instructions, all of which are reported in the former opinion; amongst which was the following instruction:

"2. You are instructed that it was not the duty of an employee to inspect the appliances of the business in which he is engaged, to see whether or not there are any latent defects that render their use more than ordinarily dangerous, but is only required to take notice of such defects or hazards as are patent or obvious to the senses. The fact that he might have known of defects, or that he had the means and opportunity of knowing them, will not prevent him from a recovery unless he did in fact know of them, or in the exercise of ordinary case ought to have known of them. It is the duty of the employer to exercise ordinary care and prudence in making reasonably careful examinations, searches or inspections at reasonable times by a competent inspector for hidden defects in appliances furnished to employees which can be discovered by a proper inspection by a competent inspector."

At the request of the defendant the court gave a number of instructions, all of which are reported in the said former opinion; and in addition thereto gave the following instructions at the request of the defendant:

"I2. I instruct you that by the words 'reasonably careful examination,' as used in these instructions, is meant such examinations as are made by other prudently conducted and operated railroads.

"I3. I instruct you further that by the words competent inspectors.' as used in these instructions, is meant such inspections as other prudently conducted and operated railroads use to inspect handcars on their roads.

"I4. I instruct you that if you find from the evidence in this case that the method of inspection used by defendant railway company as to the time of the inspection of its handcars, and as to the kind or class of inspectors used in its inspections of handcars, is such as to times of inspection and class of inspectors as other prudently conducted and operated railroads use for that character of inspections, then the defendant railroad company would have fully performed its duty owed to the plaintiff in that respect, and defendant would not be liable for a failure to properly inspect the handcar upon which the plaintiff was injured.

"I5. All the instructions are to be considered by you as the law of this case."

Upon this second trial a verdict was returned in favor of the plaintiff for $ 1,500; and from the judgment rendered thereon the defendant prosecutes this appeal.

The plaintiff was in the service of the defendant as a section hand, and while engaged in the performance of his duties upon a handcar he was injured by the breaking of the lever bar. There was a structural defect in this bar. As is said by Chief Justice HILL in the former opinion in this cause, the right of a recovery by the plaintiff "turns upon whether a proper inspection would have disclosed the defect." It is the duty of the master to exercise reasonable care in furnishing suitable and safe machinery and appliances to the servant for doing the work in which he is employed. It is the further duty of the master to exercise the same care in keeping the machinery and appliances in repair; and this necessarily requires of the master the duty of making reasonable inspection and examination of these appliances and machinery. "The duty of inspection is affirmative, and must be continuously fulfilled and positively performed." Houston v. Brush, 66 Vt 331, 29 A. 380. In the case of Baltimore & O....