53 Iowa 595 | Iowa | 1880
The “ hand hold ” is made of iron and fastened to the top of the car, for the use of the employes ascending or descending the car. That it was loose, or unfastened at one end when the plaintiff attempted to descend, because his duty required him to do so; and that in consequence thereof he was thrown or fell to the ground, and was greatly injured without fault on his part, must for the purposes of this case be conceded.
The court directed the j ury to find for the defendant because: “ First. There was no evidence sufficient to warrant the jury in finding for the plaintiff, and Second. There was no evidence tending to prove that defendant knew, or by the exercise of ordinary care could have known, of the defect in the ¡ hand hold.”. These propositions • need not be separately con- ’ sidered. The accident occurred, in the State of Missouri, and it is conceded by both parties there is no statute in that State which affects the questions to be determined.
It may be assumed that a car when first placed upon the track is in proper condition, and in every respect suitable for its intended use. But it is a well known fact that in time it will become out of repair, and unfit for use.
Now, as has been said, the duty of inspection is a positive and affirmative duty, to be continuously performed by the defendant; can the court, therefore, as a matter of law, say when, where, and how often such inspection shall take place, or that it should not have been done at some time while the car was under the defendant’s control. We think not, and that it aves a question for the jury. It is said by counsel for the defendant that the “defect was a loose bolt or screAV on one end, being a bolt or screw that assisted in retaining the hand hold in position.” Such defect could without doubt have been discovered by an inspection conducted with ordinary care. There is no occasion to imagine the cause of the accident, or be at
There is alsó a further distinction: In the cited case there was evidence tending to show the defendant had in its employ certain car inspectors, whose habit it was to make an inspection, as we understand, before the cars started on the particular trip.
In the case at bar there was no evidence that the defendant ■ had any car inspector either at Chicago or between there and Beverly. How often or when a car should.be inspected, it is not for the court to say. If it is out of repair, and thereby an.employe is injured, it is for the jury to say whether the defendant by ordinary care could have discovered the defect.
The accident having occurred because of defective appliances, the “ defendant must show that in the 'selection and operation of the machinery which caused, or contributed to, the accident, it used due care, prudence, skill and watchfulness.” Tuttle v. The C., R. I. & P. R. Co., 48 Iowa, 236.
Reversed.