29 Kan. 149 | Kan. | 1883
The opinion of the court was delivered by
This was an action' for damages, brought by the defendant in error (plaintiff below), an employé of the Atchison, Topeka & Santa Fé ■ railroad company, against the company on account of injuries received from the alleged negligence of the company in having in use a defective and a dangerous engine. The plaintiff was employed by the company as an engine wiper or cleaner, at its round-house at Las Vegas, in the territory of New Mexico. W. T. Allen at the time was in charge of the round-house and the yards; James W. Crystal was the foreman at the place; Eugene Elmore was also an engine wiper or cleaner, and worked at the time with Holt. The evidence on the part of the latter conduced to show that on the evening of the 9th of February, 1881, he went to the round-house at about seven o’clock; that he had been there only a short time when Crystal told Elmore and himself to go and clean engine No. 82, which was over the pit. Elmore and Holt started to obey the order, and went from the round-house to the engine. Elmore' got upon the engine to shake down the fire and clean the fire-box; Holt got under the engine into the pit to clean the ash-pan. "While Holt was standing in the ash-pit, leaning forward and • supporting himself with his right hand resting on the rail, and hoeing the ashes with a short hoe in his left hand, the engine moved automatically backward about three feet, by reason of ■the steam escaping through the throttle, and one driver passed over his fingers, mutilating and injuring them so that three had to be amputated.
In our view of the case, the pivotal question is, whether the special findings of the jury hereinafter mentioned are
Again, engines and other appliances used in operating a railroad are liable to wear out, to break, become defective and dangerous, and a railroad company employing such agencies is charged with notice of this fact, and consequently is bound to exercise a degree of watchfulness over them,.
The question as to whose negligence shall be imputed to a corporation, as the negligence of the principal itself, in no way affects the general rule, which requires of any employer, whether corporate or not, to take care that there is no negligence in procuring proper machinery, appliances, etc., and in making use of like kind of machinery. (Gravelle v. Rld. Co., 2 Fed. Rep. 569; Totten v. Rld. Co., id. 564; Gibson v. Rld. Co., 46 Mo. 163; Keegan v. Rld. Co., 8 N. Y. 175; Patterson v. Wallace, Macq. H. L. Cas. 748; Rld. Co. v. Barber, 5 Ohio St. 541; Hayden v. Co., 29 Conn. 584; Paulmier v. Co., 34 N. J. L. 151; Sullivan v. Co., 113 Mass. 396; Moss v. Rld. Co., 49 Mo. 167; Rld. Co. v. Moranda, 12 C. L. J. 348; Cowles v. Rld. Co., 13 C. L. J. 546; Brabbits v. Rld. Co., 38 Wis. 290; Rld. Co. v. Elliott, 1 Coldw. 612; King v. Rld. Co., 15 C. L. J. 367, and cases there cited.)
The findings of the jury referred to are as follows: That engine No. 82, inflicting the injury complained of, was dangerous and unsafe for use; that the officers of the defendant and the person in charge of the engine did not exercise ordinary care and prudence to know the condition of the engine on the day of th'e injury, or at any reasonable time prior thereto; that the engine had been unsafe and dangerous for some considerable time before the day of the injury, and that this fact could have been known to the company by the exercise of ordinary care; that the injury to Holt was caused by the use of the defective and dangerous engine; that he was
The finding that the engine was dangerous and unsafe for use on account of its defective or leaking throttle, was amply supported by the evidence. Several of the witnesses of the plaintiff testified to it, and three witnesses of the railroad company, among others its master mechanic, testified in substance that an engine 'that leaks so badly at the throttle as to move automatically is not a safe engine. The particular findings controlling in the case, which are challenged, relate to the want of'the exercise of ordinary care and prudence on the part of the defendant to know the unsafe and dangerous condition of the engine, and the failure to exercise ordinary care in acertaining its unsafe and dangerous condition.
Fletcher R. Allen testified that his occupation was locomotive engineer; .that he was acquainted with the engine inflicting the injury; that on the day of the injury it was leaking steam, and that it leaked bad enough so as to start, itself; it did start itself that day; that the'throttle had been leaking a good while, or quite a while; that he noticed in handling the engine several times before', that the throttle was leaking; that the engine started with him when the cylinder cocks were open, and that he did not consider himself safe to crawl under it without blocking it securely. •
James Howard testified that he was yardmaster and conductor for the Chicago, Rock Island & Pacific railroad company at Leavenworth; that he had been with, the company for eleven years, and that he knew a good deal about engines; that the leakage in the throttle in an engine is such a defect as to be readily observed by those in charge; that the engineer ought to know it at once, and that when an engine leaks at the throttle to such an extent as to permit it to move of its own
Frank H. Grover testified that he was a locomotive engineer on the Chicago, Rock Island & Pacific railroad; that if the throttle of an engine leaked so as to cause the engine to move, it was not safe, and should be reported for repairs; that where the throttle leaked to any considerable extent so as to cause an engine to move, the defect is easily discoverable; then an engineer could and should see it at once; that it would be the immediate duty of the foreman of the roundhouse or shops to whom the report was made, to see it repaired.
This evidence we deem sufficient to show the company might have known by the exercise of reasonable care and diligence that the engine was unsafe and dangerous, and therefore sufficient to support the findings specially challenged. If the railroad company knew, or ought to have known of the defective and dangerous condition of the engine at the time that Holt was ordered by the foreman to clean the engine, and Holt did not know, and was not bound to know of the existence of the defect, the liability of the railroad company is fixed, if Holt was otherwise' in the exercise of due care. The law will not allow the engines and machinery of the railroad company in constant use to be out of repair for want of ordinary care and skill in their management. The property of the company and the lives of passengers, as well as of railroad employés, depend upon the vigilance and frequent examination in this regard, and it is the duty of the company to keep a sufficient force at hand, and of capacity sufficient to discover obvious defects in its engines and other machinery and apply the remedy. Neglecting to keep its engines and machinery in ¿'reasonably safe condition, if injury or loss occurs thereby the company will be liable; and it ought to be so liable, because it is required to exercise reasonable and proper care to see that its engines and machinery are in proper condition, and, to guard against defects that may arise from use or other natural causes. From this responsi
If a railroad corporation does not appoint a foreman or other person whose business it is to examine, supply, repair or remedy defective engines and other machinery in actual use, it is guilty of negligence in omitting to do something that a reasonable employer would do. If it does appoint a foreman or other person to represent the corporation in this regard, and such foreman or other person omits his duty when he has knowledge of defects existing in engines and machinery in use, or fails to ascertain and remedy defects he ought to have known and might have known by the exercise of reasonable and proper care on his part by examining and inspecting the same, his negligence will be the negligence of the corporation. Counsel contend, however, that if the wheels of the engine had been blocked when placed over the pit to be cleaned, the injury complained of might have been prevented, and argue that the person charged with this duty must be presumed, in the absence of evidence defining his duties and describing his position, to have been a fellow-servant with Holt, and therefore that no recovery can be had, because the company is not at common law liable for the negligence of a co-employé. Even assuming that it was the duty of some fellow-servant of Holt to have blocked the wheels of the engine, the argument of counsel is not sound, because if the negligence of the master or employer combines with the'negligence of a fellow-servant, and the two contribute to the injury, the servant injured may recover damages from the master. In Cayzer v. Taylor, 10 Gray, 274, it was decided that the master is liable to his servant for injuries resulting from a defect in his machinery, although the negligence of a fellow-servant contributes to the accident. See also Crutchfield v. Rld. Co., 76 N. C. 320; Booth v. Rld. Co., 73 N. Y. 38; Paulmier v. Rld. Co., 34 N. J. L. 151. In the latter case the track over a trestle-work was not capable of supporting an engine, and the engineer in charge had orders not to put the engine thereon,
The judgment of the district court will therefore be afafirmed.