Woods v. Chicago & G.T. Ry. Co.

Decision Date26 February 1896
Citation108 Mich. 396,66 N.W. 328
PartiesWOODS v. CHICAGO & G. T. RY. CO.
CourtMichigan Supreme Court

Error to circuit court, Calhoun county; Clement Smith, Judge.

Action by William Woods against the Chicago & Grand Trunk Railway Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Geer & Williams (E. W. Meddaugh, of counsel), for appellant.

M. L Howell, for appellee.

MONTGOMERY J.

The plaintiff was a locomotive engineer in the employ of the defendant. On the 13th of June, 1892, while he was engaged in running engine No. 29 in the usual and customary way, and, as he testified, with no more pressure than usual, and with less than was allowed, the boiler exploded, and by force of the explosion the plaintiff received serious injuries. The negligence imputed to the defendant was the not having inspected its boiler properly to ascertain whether it was in safe condition, and permitting its use when in bad repair, by the reason of a large number of stay bolts being broken, and others corroded, and permitted to remain so for so long a time, to wit, 30 days, prior to the injury. The rule relating to the duty of the defendant in supplying appliances for the use of its employ�s is well settled. While not an insurer, it is nevertheless its duty to use reasonable and ordinary diligence in providing safe machinery and appliances in the first instance, and, by continued inspection at such intervals as the reasonable and proper conduct of such a business requires, to ascertain whether the appliances continue in safe condition, and, if unsafe, to put them in safe condition. The master is not responsible for latent defects, not discoverable by inspection; but, to the extent that this duty of inspection goes, it is the master's duty, which he cannot escape or delegate. Anderson v Railroad Co. (Mich.) 65 N.W. 585; Tangney v. J. B. Wilson & Co., 87 Mich. 455, 49 N.W. 666; Fuller v. Jewett, 80 N.Y. 46; Ford v. Railroad Co., 110 Mass. 259. The defendant's counsel do not contend against the rule as stated, but assert that the evidence in the present case shows conclusively that the engine was originally constructed in the proper manner; that proper inspection was made at such intervals as were usual and customary in good railroading, and that there was no direct testimony disputing the testimony of defendant's witnesses called to prove such inspection, and no evidence from which neglect in this respect could be inferred; and furthermore, though the court should be of opinion that evidence adduced by the plaintiff tended, by inference, to show the want of proper inspection, the positive testimony adduced by the defendant repelled such inference, so that at the close of the testimony it was the duty of the court to direct a verdict for the defendant.

The testimony offered by the plaintiff tended to show that the stay bolts connecting the inner and outer sheets of the boiler, and supporting and sustaining them, had become broken, to the number of about 50 or 60, and had been broken for a sufficient length of time before the explosion so that the ends had become worn smooth; that the material of which the boiler was constructed was of the first quality, and could not explode if kept in good repair; that hydrostatic and hammer tests, employed by this defendant and other companies, when properly conducted, were (either) sufficient to show the presence of broken bolts; that by the hammer test at least 90 per cent. of the broken stay bolts could be discovered. The last hammer test which defendant's witness claimed to have made was on the 1st of June,-but 14 days before the explosion. It is contended that these broken stay bolts show by their appearance that they must have been broken for a much longer period, in order that the broken ends should become worn smooth. It is difficult to account for these broken ends, yet it is a fact, established by credible testimony, that they were smooth. Various theories are advanced by plaintiff's counsel as to what caused the smooth ends of the broken parts, any of which would imply that considerable time must have elapsed after the breakage, and before the broken parts could be in the condition presented after the explosion. The two witnesses who made the hammer test on or about the 1st of June are Mr. Hunter and Mr. Kelly. Kelly testified on cross-examination that if the stay bolts were broken off, but the ends were together pretty tight, there might be very little difference in the sound of the hammer and the jar from what there would be if it were solid,-"not enough to convince me that it was broken." He further testified that if there were four stay bolts broken in a row, whether they were discovered or not might depend upon whether the sheet was sprung. There was other testimony tending to show that 90 per cent., at least, of the broken stay bolts, would be discovered by the hammer inspection. We think, in view of this testimony, and the testimony which tended to show that a large number of the stay bolts were broken a sufficient length of time before the injury so that their ends had become worn smooth, and that the process of wearing them smooth must have been very slow, according to any theory, and in view of the fact that the testimony shows that these bolts break gradually, it became a question for the jury whether the witnesses Hunter and Kelly made a proper hammer test at the time stated. If their testimony could not be disputed in the manner adopted in this case, it follows that, however incredible the surroundings may make their testimony that they performed their full duty, their testimony must be accepted as true.

Even though the proof of the plaintiff depended upon inference to establish the main fact, yet whether the inference was sufficiently rebutted was a question for the jury. Crosby v. Railroad Co., 58 Mich. 458, 25 N.W. 463; Hagan v Railroad Co., 86 Mich. 615, 49 N.W. 509. The rule is different if the defense consists of a distinct fact, not inconsistent with the proofs offered by the plaintiff. There is other significant testimony in the case, which not only has a direct bearing on the question of whether a proper inspection was made, but tends strongly to show subsequent negligence by defendant's servants, if it does not show such negligence conclusively. James Spearman was locomotive inspector for the defendant on the 9th day of June,-five days before the accident. He described defects which he noted in a book kept for this purpose, as follows: "Put bolt in right jaw of engine truck, and tighten up all around. ...

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