94 Mo. 468 | Mo. | 1887
Plaintiff sued for damages for the death of her husband, E. B. Grutridge, who was a brakeman on that division of the defendant’s road from Sedalia to Parsons. Defendant received a freight car, belonging’ to the Pittsburg, Cincinnati & .St. Louis Railroad Company, at St. Louis, on the first of August, 1884, and on that day, hauled the same to Chamois, and on the next day to Sedalia, and on the third to Montrose, on the Sedalia and Parsons division. On the eighth of the same month, a train on which Grutridge was a brakeman, took the car back to Sedalia. The train, before reaching that place, and in starting from the water-tank at Calhoun, broke in two, leaving eight cars attached and fifteen detached from the engine. Grutridge was on the forward portion, and after it ran some distance he signaled the engineer to stop.- He then got a pin or link, walked on top of the cars to the rear one, being the car in question. This car had a ladder attached to the rear end and a hand-hold at the top, fastened on the top of the car. He attempted to go down the ladder to make the coupling while his division was moving backwards to the detached section; but the hand-hold came loose, and he fell to the track, and was killed by the cars running over him.
It was the duty of the deceased to go up and down the ladder while the cars were in motion, and there is no evidence of any negligence on his part. No evidence was offered as to whether the car was or was not inspected at St. Louis, Sedalia, or any other point.
Mr. Minish testified: “Picked up the hand-hold; it was a small one, just room for one hand to cleverly fit in'it; the flat ends were fastened to the top of the car with screws about two inches long. The screws looked rusty and bad ; they looked almost as much like nails as they did like screws; were filled up with rust and looked as if they had been working loose from the
Mr. Slack, a carpenter, stated that he climbed to the top of the car and examined it only immediately around the hand-hold; that the holes where the screws had been seemed to be larger than the screws, and that a splinter had been'raised at one hole, and the wood was decayed. After stating that he was familiar with the manner of fastening iron to wood with screws, he was asked this question: ■“ Prom appearance of the top of the car there, the holes and what you saw, you can state to the jury whether in your opinion it could have been disclosed, by reasonable inspection, that that hand-hold was not tightly fastened to the top of that car before it broke loose.” A. “ Yes, it would.”
1. There are exceptions to the general rule that witnesses must state facts and not' give their opinions, as where the subject of inquiry is so indefinite and general in its nature, as not to be susceptible of direct proof. Eyerman v. Sheehan, 52 Mo. 222; Greenwell v. Crow, 73 Mo. 638. But such is not the case here. There is no evidence tending to show that the defendant, or any of its agents, knew the hand-hold was defectively attached. If the plaintiff recover, it is on the ground that, by reasonable and ordinary care in inspecting cars, the’defect would have been discovered. The witness was allowed to testify to the very thing which the jurors were called upon to determine from the facts, not from the opinion of tfiis or any other witness. His opinion practically
2. It is objected, by way of a demurrer to thé evidence, that the case should have been taken' from the jury, because there is no evidence that the defect could have been discovered by an examination or inspection. The car was an old one. The hand-hold was fastened with screws in common use, not bolts. All this was in plain view. There is some evidence that the screws had become loose in the wood. The car was received to be transported■ over different sections of the defendant’s road, and we cannot say there was no evidence on the issue just stated.
3. Another objection, made on the demurrer to evidence, is that the petition counts on an original defective construction of the hand-hold, while the evidence shows it became defective from use and lapse of time. The substantial averments of the petition are : “That said hand-hold was not safe and sufficient, but was defective and insufficient, and was insecurely fastened to the top of said car, and by reason of said defectiveness, insufficiency, and insecurity, said hand-hold broke, and by reason of its breaking, plaintiff’s said husband fell,” etc. That defendant, disregarding “its duty in the premises, negligently furnished and supplied an unsafe, defective, insecure, and insufficient hand-hold upon said car there used and operated by it as aforesaid, by reason
4. The defendant contends that it had a right to assume that the car, being a foreign one, was reasonably safe and fit for the uses for which it was being used. We do not agree to the proposition as thus broadly stated.' If the car had obvious defects which rendered* it unfit for use, defendant was Under no obligation to receive it, and should not have received it. Cars coming from one road to another mu st necessarily be subjected to wear and are liable to be rendered unfit for use in the course of transportation, and this must be known to the receiving company. It is but the result of the most common observation. While it is not incumbent on the receiving company, on the receipt of the car, to make tests to discover hidden defects, in the construction, or in the materials used in the construction, still it is bound to inspect foreign cars just as it would and is required to inspect its own, after they have been in use. This duty devolves upon the company as much in the one case as in the other. While there are authorities which would seem to lead to different results, yet this, we think, is the better doctrine. The liability for a failure to inspect, or for the want of a proper inspection, is the same in the one case as in the other. Gottlieb v. Railroad, 1 Cent. Rep. [N. Y.] 728; Fay v. Railroad, 15 N. W. Rep. [Minn.] 241.
5. As this case must be remanded, it may be well enough to say, in reference to the abstract proposition
The judgment is reversed and the cause remanded.
