Fordyce v. Edwards, 60 Ark. 438

Fordyce v. Edwards

60 Ark. 438 | Ark. | 1895

Riddick, J.

i. Master’s liability for ^N^ry®ma' (after stating the facts.) We do not .. . ... discover any material error m this case, except the rule announced by the court in the first portion of instruction No. 2. That instruction told the jury, without qualification, that the appellee “had the right to presume that the engine furnished him by the defendants was in good condition, and he was not required to inspect the same for defects.” This is a correct statement of the law when speaking of latent defects. For such defects the servant is not required to look, but he must look for and take notice of defects that are obvious, and that can be discovered by ordinary observation. He cannot go blindly ahead regardless of consequences, but he must use his eyes, and make such inspection as ordinary care would require of one whose duty it is to take notice of obvious defects. Little Rock etc. R. Co. v. Leverett, 48 Ark. 347; Wormell v. Railroad Co. 79 Me. 405; Way v. Railroad Co. 40 Ia. 341; Anderson v. Railway Co. 39 Minn. 523, S. C. 41 N. W. 104; Batterson v. Railway, 53 Mich. 125, S. C. 18 N. W. 584; Illick v. Railway Co. 67 Mich. 632, S. C. 35 N. W. 708; Morton v. Railroad Co. 81 Mich. 435, S. C. 46 N. W. 111; Bailey’s Master’s Liability to Servant, 160; Wood’s Master and Servant, sec. 376.

Now, in this case, the defect complained of was that the pilot of the engine was raised too high above the track. Instead of being about four inches above the track, according to testimony of appellee, it was seven or eight inches above it — nearly twice too high. This was an obvious defect. It was apparent to any one who looked at the pilot. The appellee was a trained and experienced engineer. He knew the danger in operating an engine with a pilot seven inches above the track. His testimony shows that he knew how the height of a pilot was regulated ; that it was done by the means of springs. Before taking charge of the engine, he saw the engine inspector take out the old spring and put in a new one, and he claims that this new spring raised the point of the pilot too high. Now, a material question in the case is, why did appellee not notice this defect before starting on his trip ? Did he use ordinary care in looking for obvious defects, and did he fail to discover it through no fault on his part ? or was his failure to notice it due to want of ordinary care, and to his own inattention to his duties ? Appellee stated that, at the time he took charge of the locomotive, it was standing in a depression in the track, but it was a question for the jury to say whether this would have prevented him from discovering the condition of the pilot had he used ordinary care. This question we think was not properly presented to the jury. On the contrary, as the only defect complained of was, under ordinary circumstances, an obvious defect, and as the instruction referred to told the jury that the plaintiff had the right to presume that the engine furnished him by defendant was in good condition, and that he was not required to inspect the same for defects, they would naturally conclude that the court referred to this defect, and that appellee was under no obligation to look for or see such defect, however obvious it might be.

It may be contended that this error was cured by some of the other instructions, but we think that, whether read alone or with the remainder of the charge, this instruction was prejudicial to the right of appellants.

It is contended that other instructions given by the court are erroneous, and it is true that, if read separately, the construction of one or two of them may be subject to slight criticism, but when the entire charge of the court is taken in connection with the facts of this case, we do not see that appellant was prejudiced, except as above stated.

2. servant’s, defect aot an estoppel, whei1, If appellee, without fault on his part, first discovered the condition of the pilot after he had commenced x his trip, and the defect was not such as to render the engine immediately dangerous, he would not be required to abandon his engine, or lose his right to recover by continuing on his journey until he reached a station where the defect could be cured, or a new engine obtained, if the defect was such that it was reasonable to believe that the engine might still be safely operated by the exercise of great care, and if the risk was not greater than a person of ordinary prudence would have taken under the same circumstances.

For these reasons we think that the court was justified in refusing to give instructions six and seven asked by appellant, which, in this regard at least, were calculated to mislead.

The judgment of the circuit court is reversed, and the cause is remanded for a new trial.