Hope v. Natchez, Columbia & Mobile Railroad

54 So. 369 | Miss. | 1910

Smith, J.,

delivered the opinion of the court.

Appellee Butterfield Lumber Company is a corporation operating a logging railroad, and appellant was employed by it as a brakeman. Appellee’s cars were equipped with the old-style link and pin couplers. In order to couple cars thus equipped, it is necessary for the person making the coupling to go between the cars, taking hold of the link, which is usually attached to the drawhead of the moving car, and insert it in the draw-head of the car to which the other car is to be coupled. On the occasion in question appellant, was engaged in making such a coupling, and exercised all necessary care in so doing. He wore gloves at the time, and offered to prove that it was customary to do so while engaged in this work; but this evidence was objected to by appellee, and excluded, on the ground that it was immaterial, by which we presume appellee meant to admit that the wearing of gloves was no evidence of contributory negligence on the part of appellant. Unknown to him, a sliver, about half an inch long and “not larger than a man’s finger,” had been partially broken off of the under side of tiñe link and projected straight down. This sliver could easily have been discovered, had the link been inspected for the purpose of ascertaining its condition. This appellant did not, and in fact could not,, do while making this coupling; neither was it his duty to make such an inspection at any time. He had succeeded in successfully inserting the link in the drawhead; but in attempting to withdraw his hand his glove became fastened in this sliver, resulting in two of his fingers being caught and crushed between the drawheads, necessitating the amputation thereof. There was no attempt whatever by appellant to show when this link became, or how long it had remained, defective; his evidence being confined to the mere existence of the defect. From all that appeared from the evidence, this sliver might have been broken off the last time the link was used in making a coupling, which, so far as the evidence discloses, might have been only a few minutes before appellant was injured. At the close of appellant’s evidence the court charged the jury peremptorily to find for appellee, and there was a verdict and judgment accordingly; hence this appeal. Appellant admits that the judgment is correct in so far as it relates to the Natchez, Columbia & Mobile Railroad Company.

It is the duty of the master to furnish his servant with reasonably safe tools and appliances with which to do his work, and he is responsible to his servant for any injury received by the servant, while himself in the exercise of due care, by reason of any defect in such tools and appliances, of which the master knew, or by the exercise of reasonable care and diligence could have known. White v. Railroad Co., 72 Miss. 12, 16 South. 248; Kneale v. Dukate, 93 Miss. 201, 46 South. 715; 26 Cyc. 1097; 20 Am. and Eng. Ency. of Law (2d Ed.), 71. The master is responsible to the servant only for injuries received through his negligence, and the burden of proving such negligence is upon the servant, to the same extent that it is upon all other plaintiffs seeking to recover on the ground of negligence. When a servant is injured by reason of a defect in a tool or appliance furnished him by the master, one of the essential elements of negligence on the part of the master is knowledge, actual or constructive, of the existence of the defect in the tool or appliance; consequently the burden of showing such knowledge is upon the servant.

In the case at bar no attempt was made to show actual knowledge on the part of the master. In order to show constructive knowledge, it is necessary for appellant to show, not only that the defect could have been discovered by a reasonably careful inspection of the link, hut that the master had an opportunity, in the exercise of reasonable diligence, to have made such an inspection. In order to show that the master had such an opportunity for inspection, it was necessary for him to show, either that the defect in the link existed at the time it was furnished by the master, or, in event it became defective •after it was so furnished, that the defect had been in' existence for a length of time sufficient to have afforded appellee, in the exercise of reasonable diligence, an opportunity to inspect it. Both of these facts can, of course, be established by circumstantial evidence in the same ,manner that any fact may be so established in other eases. Appellant did not attempt to establish either of these facts by any sort of evidence, and consequently the conrt below did not err in instructing the jury peremptorily to find for appellee. 2 Labatt, Master and Servant, § 832, 20 Am. and Eng. Ency. Law, 86-92; 26 Cyc. 1410 to 1417, inclusive, and 1444 et seq.; 4 Thompson on Negligence, § 3864 et seq. The law presumes that the master has discharged his duty to furnish the servant with reasonably safe tools and appliances, and except as provided by statute, and in cases wherein the doctrine of res ipsa loquitur applies, this presumption is not overcome by mere proof of injury to the servant by reason of a defective appliance.

Affirmed.