Union Stock-Yards Company v. Goodwin
| Decision Date | 08 December 1898 |
| Docket Number | 8489 |
| Citation | 77 N.W. 357,57 Neb. 138 |
| Parties | UNION STOCK-YARDS COMPANY v. EDWARD GOODWIN |
| Court | Nebraska Supreme Court |
ERROR from the district court of Douglas county. Tried below before SLABAUGH, J. Affirmed.
AFFIRMED.
I. R Andrews and Frank T. Ransom, for plaintiff in error.
James P. English, contra.
The Union Stock-Yards Company is a state corporation. It owns and operates at the city of South Omaha, in connection with its business of lotting, feeding, and caring for stock in transit, a system of railroads connecting its yards with various packing-houses located at that place, and which railroads connect the packing houses and yards with the terminals of the various railways centering at that point. The switching and transferring of cars from the railway termini to the stock-yards and packing-houses is carried on by the stock-yards company with its own engines, crews, and over its own tracks. On April 10, 1895, the stock-yards company had in its employ one Edward Goodwin, who was a brakeman. On this date Goodwin and the crew of which he was a member were ordered to bring from the Burlington road, or its terminus, six cars of cattle, and set the cars out at the stock-yards chute for the purpose of unloading. One of the cars in this train was a Hammond refrigerator car equipped with an ordinary hand-brake. Fitted horizontally on the top of the brake-rod or shaft, extending above the top of the car, was an iron wheel used by brakemen for the purpose of setting the brake attached to the lower end of the brake-rod by a chain. This horizontal iron wheel was fastened to the brake-rod by a nut screwed on the end of the shaft. Goodwin while in the discharge of his duties as such brakeman, in switching out these six cars of cattle, climbed on this Hammond refrigerator car, and while the six cars were moving he attempted, as was his duty, to set the brake. The nut which should have held the horizontal wheel firmly to the brake-rod came off. The wheel came off, and Goodwin was thrown to the ground and severely and permanently injured. The refrigerator car was not the property of the stock-yards company. The stock-yards company had not caused it to be inspected before it took it into its possession, and ordered its employes, among whom was Goodwin, to use it. The nut did not part from the brake-rod because of its being worn out, nor because of any defect in any part of the brake-rod or the nut itself. The end of the brake-rod and the nut which slipped therefrom were both perfectly sound, but the nut was too large for the brake-rod. The screw-threads in the nut did not fit the screw-threads on the brake-rod, and the opening in the nut was so large that it could be pushed down over the threads on the end of the brake-rod by one's fingers. A mere glance or casual look at the nut on the brake-rod would not disclose to one inexperienced in the construction of brakes that the brake was defective in construction and dangerous because of the size of this nut. In the district court of Douglas county Goodwin sued the stock-yards company for damages for his injury; alleged the improper construction of this brake and his ignorance of its defect; that the stock-yards company negligently neglected to have this car and brake inspected before taking it into its possession and causing him to use it; that a careful inspection of the brake and car by the inspectors of the stock-yards company would have revealed the defect in the brake; and that the neglect of the stock-yards company to so cause the brake and car to be inspected was the proximate cause of his injury. He had a judgment for $ 10,350, to review which the stock-yards company has filed here a petition in error.
1. As already stated, the car on which was the defective brake that caused Goodwin's injury was not the property of the stock-yards company. This fact, however, is no defense whatever for the stock-yards company in this case. A person or corporation using the cars or appliances of another person or corporation, as to its employes, uses such cars or appliances charged with the same duties as to inspection as if the cars or appliances were its own; and the employe who, under the instructions of his master, uses a car or appliance in his master's possession belonging to some other person or corporation thereby assumes only the same risk that he would if the car or appliance belonged to his employer. (Gottlieb v. New York, L. E. & W. R. Co., 100 N.Y. 462, 3 N.E. 344; Goodrich v. New York C. & H. R. R. Co., 22 N.E. 397; Baltimore & P. R. Co. v. Mackey, 157 U.S. 72, 39 L.Ed. 624, 15 S.Ct. 491; Atchison, T. & S. F. R. Co. v. Penfold, 45 P. 574; Missouri P. R. Co. v. Barber, 44 Kan. 612, 24 P. 969; Atchison, T. & S. F. R. Co. v. Seeley, 54 Kan. 21, 37 P. 104.)
2. A contention of the stock-yards company is that in order for Goodwin to recover he was compelled to show by a preponderance of the evidence that a reasonably careful inspection would have disclosed the defect in the brake which caused his injury, and that he failed to make such proof. We have already stated the actual condition of this brake at the time it was used by Goodwin, in what manner the brake was defective, and the latent character of this defect to a person inexperienced in the construction of brakes who simply looked or glanced at it. The argument here is that from these undisputed facts the jury were not warranted in inferring that a careful inspection of this brake and car by the inspectors of the stock-yards company would have revealed the brake's defective condition. We do not agree to the contention. On the contrary, we are persuaded that from the undisputed facts in reference to this defective brake the jury were justified in drawing the inference that a careful inspection of the brake and car would have revealed the defect. It by no means follows that because a person inexperienced in the construction of a brake, seeing this one, would not have observed the defect that an inspector inspecting this car would not by the exercise of ordinary care have discovered the defect. An ordinary railway brakeman simply observing a car wheel might conclude that it was sound, while the tap of the inspector's hammer would reveal that the wheel was broken. The facts that the brake was improperly constructed, and therefore defective and dangerous, and that this defect was not apparent at a glance stood admitted. It was a reasonable and logical deduction from these admitted facts that had the brake been inspected by trained inspectors the defect would have been discovered; and such logical and reasonable deduction and inference the jury had the right to draw. (Kilpatrick v. Richardson, 40 Neb. 478, 58 N.W. 932; Kearney Canal & Water Supply Co. v. Akeyson, 45 Neb. 635, 63 N.W. 921.)
In Chicago, B. & Q. R. Co. v. Wymore, 40 Neb. 645, 58 N.W. 1120, Wymore's intestate was killed in a collision between two trains. One train was standing on a siding, and a train on the main line collided with it because the switch-key in possession of the brakeman failed to open the switch-lock; and it was held that the jury might properly infer from these facts that the railway company was guilty of negligence in sending out a brakeman equipped with a key which it was not known would properly control all the locks which he might have occasion to use. IRVINE, C., speaking for the court, said: "The evidence showed without contradiction that this key would not unlock this particular lock, and there was no evidence tending to show that any test had been made of it before the accident, or that any precautions had been taken to ascertain its safety."
In Union Stock Yards Co. v. Conoyer, 41 Neb. 617, 59 N.W. 950, Conoyer's intestate was last seen examining a train that had been made up ready to move. His body was found between the rails on the track occupied by the train. The second car from the rear was found derailed, caused by material on the track, and the train had moved some distance after the derailment, dragging the body of Conoyer's intestate with it. There was no other proof of negligence. The present chief justice speaking for the court of this evidence said: "Constitute an array of physical facts and set of circumstances which fully warranted the trial judge in submitting the case to the jury for their determination; and finding as the jury did, they would not be called upon, at any point in the case entering into such finding, to draw any inferences which would necessarily be violative of the rule of law which prescribes that 'inferences must be drawn from facts proved;' nor do we think that the verdict rendered necessarily involved any speculation and conjecture other than reasonable and fair inferences in view of all the facts and circumstances proved on the trial as surrounding the killing."
Other instructive cases on the subject under consideration are Spicer v. South Boston Iron Co., 138 Mass. 426; Missouri P. R. Co. v. Barber, 24 P. 969; Missouri, K. & T. R. Co. v. Chambers, 43 S.W. 1090.
3. It is next insisted that the judgment of the district court is erroneous because the evidence shows that the stock-yards company had a "well known rule," "custom and manner" of doing business, namely, that all trains in which there were cars of live stock were taken to the chute for the purpose of unloading the stock before the stock-yards company inspected the cars; and that Goodwin continued in the service of the stock-yards company with full knowledge of this rule or custom, and thereby assumed the risk of the defect which caused his injury. Assuming, without deciding that the evidence in behalf of the stock-yards company established the existence of such well known rule and custom, and that Goodwin, with...
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