Wyoming Coal Mining Company v. Stanko

• Decision Date: 03 February 1914
• Docket Number: 727
• Citation: 135 P. 1090,22 Wyo. 110
• Parties: WYOMING COAL MINING COMPANY v. STANKO
• Court: Wyoming Supreme Court

135 P. 1090

22 Wyo. 110

WYOMING COAL MINING COMPANY v. STANKO

No. 727

Supreme Court of Wyoming

February 3, 1914

22 Wyo. 110 at 127.

Original Opinion of November 3, 1913, Reported at: 22 Wyo. 110.

Rehearing denied.

Metz &amp Sackett, for defendant in error.(In support of motion for rehearing).

There was evidence showing original defect in the brake, in that the kind of bolts used were too small and weak and the evidence was not objected to; on the contrary, much of the evidence was introduced by the defendant, and therefore it cannot complain of its admission. The only question, then, is whether under the petition the question of original defect was proper to submit to the jury, since the evidence went in without objection. If it might be amended so as to allege an original defect the judgment ought not to be reversed on the ground of the absence of such an allegation. (Rainsford v Massengale, 5 Wyo. 1; Mangum v. Min. Co., (Utah) 50 P. 834). It is true the word "original" is not used in the petition describing the defect, but we do not think that was necessary so long as the petition indicated that at the time the brake was furnished it was defective and unsafe from whatever cause. We find no cases holding it necessary to allege or specify that the defect causing the accident was in the original construction of the appliance, but it seems to be the general rule that it is not material whether the defect was in the original construction or arose from want of repair. An allegation of original defect is not inconsistent with an allegation of negligence in the matter of inspection and when both are alleged in the same paragraph, as in this petition, they should be construed together, and not so as to make one qualify the other. (Wells v. R. R. Co., 232 Pa. St. 330, 81 A. 330; R. R. Co. v. Brinker, (Tex.) 3 S.W. 99; Merica v. Traction Co. (Ind.) 97 N.E. 192; Glass Co. v. Hazen Conf. Co., 97 N.E. 627; Miami Coal Co. v. Gardner, (Ind.) 97 N.E. 942; Roberts v. Vroom, (Mass.) 98 N.E. 687; Rogers v. Truesdale, (Minn.) 58 N.W. 688; Verlinda v. S. & W. Eng. Corp., (Mont.) 119 P. 573; Am. C. & F. Co. v. Barry, 195 F. 919; Express Co. v. Wahl, 168 F. 848; Joseph v. St. Ry. Co., 107 S.W. 1055; Dlauhi v. Ry. Co., 139 Mo. 291, 40 S.W. 890.) The instruction to the effect that if the system of inspection followed by the defendant was the same as that in common use by employers in the same line of business then the defendant would not be negligent in the matter of inspection was given at the request of the defendant, and is erroneous, since it invaded the province of the jury upon a question of evidence, and does not correctly state the law. (Ry. Co. v. Davis, 65 S.W. 217). This instruction was not mentioned in the bill of exceptions or in the motion for new trial, and it should not be considered as ground for holding the answers to interrogatories inconsistent with the general verdict. The jury evidently followed the theory of the case shown by the instructions, including defective appliance as well as failure to inspect and repair, and we think it reasonable to construe the action of the jury as showing their belief that the bolt was originally defective and that the company knew or ought to have known of that condition.

BEARD, JUSTICE. SCOTT, C. J., concurs. POTTER, J., did not participate.

OPINION

ON MOTION FOR REHEARING.

BEARD JUSTICE.

The defendant in error has filed a motion for a rehearing in this case in which the point most strongly urged is that we were in error in holding that a fair construction of the petition is, that the only negligence charged as the cause of the injury was the alleged failure of the defendant to inspect and keep its coal cars in reasonably good repair and safe condition, and not that the cars were unsafe by reason of improper or defective construction. The allegations of the petition are quoted in the opinion, 135 P. 1090, and need not be repeated here. The statements are that "the said brake broke by reason of being in disrepair, and being in an unsafe and dangerous condition." "That defendant company did not furnish or provide the said plaintiff with safe machinery and appliances with which to work, and did not repair the brake and appliances upon said coal cars * * * and did not exercise reasonable care in the furnishing of said coal cars and appliances to this plaintiff, and that, if the defendant company had exercised due care and diligence in the inspection and repair of said coal cars, the same would have been in safe condition," etc. "That at the time of furnishing the said coal cars to plaintiff for use in said mine the said defendant knew, or by the exercise of proper care would have known, that such coal cars and the brakes thereon were in disrepair and dangerous and unsafe." It appears clear to us that the petition specifically charges that the cars were in disrepair, and for that reason were unsafe and dangerous, and that in negligently furnishing such unrepaired cars the company violated its duty to furnish reasonably safe appliances. The brake broke by reason of being in disrepair. The company did not repair the brake. If the company had exercised due care in the inspection and repair of said cars they would have been in safe condition. Each and all of these allegations direct the attention to the matter of repair. To repair means, "To restore to a sound or good state after decay, injury, dilapidation, or partial destruction." Disrepair, means, "The state of being in need of repair." ...