44 So. 813 | Miss. | 1907
delivered the opinion of the court.
On the hearing of this case, after the testimony was all in and the ease fully developed, the circuit judge gave a peremptory instruction to find for the railroad company. We think the action of the court was proper. The facts proven did not warrant a recovery. The appliance which it is claimed was defective, and by reason of which it is alleged that Scott Jones lost his life, is one of a kind in universal use and approved by the experience of-a number of railroads, and in itself is not defective or unsafe. The change desired in the appliance, which it is contended the railroad company promised should be made, if it be conceded that the facts show there was a promise, was not a defect called to the company’s attention and a promise to repair a defect existing in the appliance, but was a promise to change from a safe to a safer appliance. In all the cases cited by the learned counsel for appellants, the facts show, where there was a promise to repair and the master was held liable, it was a promise to repair an existing defect, admittedly so. The proof in this case utterly fails to show that the pilot in use was in any sense a defective pilot. In the language of the case of Hatter v. Illinois Central R. R. Co., 69 Miss., 642, 13 South., 827, “to hold the employer liable for the injury sustained would, as it appears to us, be to declare that railroads are responsible for injuries to their servants in all
Affirmed.
