99 Ky. 684 | Ky. Ct. App. | 1896
delivered the opinion oe the court.
E. V. Hilliard was employed as. conductor of a freight train of appellant, the Illinois Central Railroad Co., which left Mounds Station of that State October 5, 1893, going southward, hut just before1-reaching Clinton, Kentucky, the train, moving at about the rate of five miles per hour, broke apart, and Hilliard, being on the fop of the cars, thereupon started to descend to the ground on a ladder fixed at the end of one of the cars, when a round thereof as he grasped it
It is not contended that he was, under the circumstances, out of his proper place or negligent, or outside his line of duty in attempting to descend in the manner and time that he did; nor is there dispute about his fall and injury resulting from insecure fastening of the round which he had to take hold of in order to descend. The questions, therefore, are whether the railroad company was guilty of actionable negligence, and if, or although it was, whether Hilliard as conductor was guilty of such contributory negligence as that but for it the fall and injury would not have occurred, and those questions involve an inquiry as to the respective and relative duties of the two parties.
As the lower court instructed the jury, it was the duty of the company to provide and keep in good and safe condition the ladders attached to the several cars; and, as it further instructed, if at the time plaintiff was hurt the ladder in question was in an unsafe condition and defendant knew it, or by the use of ordinary care could have known it in time to put the same in a safe condition, and the injury resulted from such condition of the ladder, then plaintiff was entitled to recover, unless plaintiff knew, or by exercising ordinary care could have known, the ladder was in such condition.
Defendant asked but the court refused to give the following instruction: “That the car inspector of the defendant and the plaintiff as conductor of the freight train upon which the accident happened were fellow servants, engaged in the same line of service as to the inspection of the cars in said train, and, though the jury may believe from the evidence that said inspectors were guilty of negligence in the
That instruction was properly refused because abstract and misleading. In the first place the person employed at Mound Station to inspect each car of a train and ascertain if it is in a safe condition was not a fellow servant of plaintiff in the sense of being upon a common footing and agents of each other. They acted in different spheres, and neither could or was required to know whether the other was properly doing his duty. In the second place it would have been improper to require the jury to believe the inspector was guilty of gross negligence. The simple inquiry was, as they had been instructed, whether the company, through its inspector, used ordinary care in examining the cars so as to ascertain whether the ladders attached to each were in a' safe condition; for it was the legal duty of the company to guard against every source of danger they could, by the exercise of that kind and degree of cane, foresee and prevent; and while a railroad company can not be required to insure the safety of a train, it is bound to make a reasonable, proper and careful examination of each car.
The evidence in this case shows that the bolt which held the defective round of the ladder was so rusted and worn that the tap slipped off when the plaintiff grasped the round. And the jury might have reasonably concluded that the inspector could and would, by using the proper and reasonable care, have discovered the fact, and having failed to do so legal liability of the company was fixed.
On the other hand the conductor, while required to examine the condition of a train before taking charge of it, could not be reasonably required or expected to make such close and minute examination as to discover a latent defect.
Perceiving no error of law on the trial of this action, the judgment is affirmed.