149 Wis. 154 | Wis. | 1912
Neither in principle nor authority can we perceive any infirmity in the doctrine wliich the trial court-applied to this case and ruled it, viz.: if a railroad company places a freight car, with brake set, on a sidetrack for the purpose of serving a particular business, the employees there being expected, according to custom, to move the car to the particular point for loading material or articles thereon, the proprietor of such business has a right to presume that it is in suitable condition for use, unless the contrary appears without' particular or technical inspection, in the absence of obvious' defects or knowledge of some fact or circumstance, actually or • constructively brought home to such proprietor, which would ■ -ordinarily put an ordinarily careful person on such inquiry as to lead to knowledge of a contrary condition existing.; - The-proprietor of such business is bound to observe defects which would naturally and ordinarily attract the attention of a person so circumstanced, having no duty to look particularly or .search for such difficulties.
The situation of respondent was as above indicated. When it found the car on the sidetrack leading to its loading place, it was consistent with ordinary care to assume that the brake appliance was in proper condition. There was nothing to in
Some complaint is made of the instructions which need not be discussed. They were probably more favorable to appellant than he was entitled to. They were to the effect that,, it was the duty of respondent to make an ordinary external examination for the purpose of discovering whether the car was-in a reasonably safe condition. As before indicated, it was not respondent’s duty to look for defects. It had a right to assume, under the circumstances, that the car was in proper-condition for use. The act of setting the car in therefor involved a representation that it was in such condition, which respondent had a right to rely on except as to obvious defects, and there were none. Such a case is not within any rule, requiring an inspection. It is simply within the rule that one-must see defects which are open and obvious to ordinary attention of a person working with the appliance under the circumstances of its use. Such a person would naturally proceed upon the theory that no substantial defects existed in am appliance furnished to him by the owner for his use. The rule does not apply as in case of a railroad receiving cars from a connecting line, which are liable to become out of repair in, the course of transit to the place of transfer, but the one in case of furnishing an implement for use under such circumstances as to suggest that it is ready therefor.
By the Court. — The judgment is affirmed.