127 Ky. 433 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
Appellee ■ Chesapeake & Ohio Railway Company controls and operates a short branch line in Lewis and Carter counties, known as the “Kinniconick & Free Stone Railroad.” It runs only mixed freight and passenger trains on the line. Appellant was a passenger on one of these trains. A loaded freight car of the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, which was being hauled in this train was derailed by a broken axle, it is said, wrecking the passenger coach in which appellant was riding, inflicting injuries upon her which she claims were painful and impaired her power to earn money. The axle broke because of a latent fault, a sand hole, caused by the sand used in moulding the axle being accidently taken into the molten metal. The spot occupied by. the sand, if within the axle, is entirely undiscoverable by any kind of visual inspection, and in proportion to its area necessarily weakens the axle. If the derailment of the car in this instance was due to the circumstance of the defective axle, it illustrates just how dangerous such a defect may be. The question for decision on this point is: What was the extent
The language usually employed in defining the measure of the carrier’s duty is that “a common carrier of passengers is bound to provide for their safety so far as human care, skill, and foresight are capable of securing that end. ’ ’ But the question recurs, then: When is this duty discharged? Is a carrier which takes the car of another company into its passenger train excused from liability to its passenger resulting from hidden defects in such car when it shows that they were not discoverable by the ordinary methods of inspection available and practicable as to a car upon the tracks? Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141, was a case where a passenger had been injured by a defect in a Pullman car being hauled by the Pennsylvania Company in one of its trains.’ It sought to escape liability for the injury, upon the ground that it had no control- over the car as to repairing it or keeping it in a safe condition, and particularly as to hidden defects in its construction. In the court’s opinion, by Mr. Justice Harlan, it was said of the duty of the carrier: “These and many other adjudged cases, cited with approval in elementary ’ treatises of acknowledged authority, show that the carrier is required as to passengers to observe the utmost caution characteristic of very careful, prudent men. He is responsible for injuries received by passengers in the course of their transportation which might have been avoided or guarded against by the exercise upon his part of extraordinary vigilance, aided by the highest skill. And this caution and vigilance must necessarily be extended to all the agencies or means employed by the carrier in the transportation of the
The suggestion is made that under the Constitution and laws of this State carriers are bound to take the ears of connecting lines, and to haul them on equal terms with its own cars; and that as it has not the opportunity for other tests or examination than the conditions afford — the car standing upon the track— it ought not to be held accountable for not discovering defects that were not discoverable by such methods of examination. This would impose on the carrier, as we shall see further along, less responsibility as to such cars than the law imposes as to the carrier’s own ears. Such a rule is not consistent with that exacting standard which the law out of its tender regard for human life has erected for the protection of the traveling public. As intimated in Pennsylvania Co. v. Eoy, supra, the owner of the defective car might and doubtless would be liable to reimburse the carrier who was compelled to respond in damages to its passenger injured because of such defects. At any rate, as between the three, the passenger, the carrier, and the owner of the car, the passenger’s safety and the carrier’s supreme? duty are the matters of main concern to the law. The tendency is to exact more care, and not less, of carriers of passengers.
Able counsel for appellee contend that the rule in this State does not extend so far as is written above. No case has heretofore arisen in this State where the question was involved either as to the carrier’s responsibility for the condition of cars not its own which it hauls in its trains, or as to defects occurring in the course of the manufacture of the cars construing its trains. Nevertheless we will examine in this opinion the authorities relied upon by appellee. Kentucky Central R. R. Co. v. Thomas, 79 Ky. 160, 2 Ky. Law Rep. 114, 42 Am. Rep. 208, is cited. There the. question was as to the duty of a railroad company, a common carrier, to equip its cars with Westinghouse air brakes At this day, less than 30 years after that case was decided, it may seem strange that a carrier of passengers was resisting the installment of that now indispensable appliance to railroad trains which has proved so valuable to both the carriers and the public. Yet in that case the plaintiff offered evidence conducing to prove that the Westinghouse air brake was more efficient in arresting the progress of a train than the brakes in use on the defendant’s train on which the intestate was killed. The defendant objected to the evidence, and, it being admitted over its exceptions, that was assigned as error. Respecting the duty of railway carriers, the court laid down this rule, which we understand to be the same, differ
Finally, a question was made and submitted to the jury, respecting the assumption of additional risks by appellant in riding upon a mixed train. We do not think there was any place in this case for such an instruction. Carriers who operate mixed trains .for carrying passengers are under precisely the same duty as regards the safety of their cars from defects as where they carry the passengers, upon passenger trains. In Illinois Central v. Vinson, 74 S. W. 671, 25 Ky. Law Rep. 38, and C. & O. Ry. Co. v. Jordan, 76 S. W. 146, 25 Ky. Law Rep. 574, the instructions were predicated upon the evidence as to sudden jerkings of the trains, and in such cases there is an assumption by the passenger of such usual jerkings and jolts as are necessary and customary in starting and stopping prudently operated mixed trains; but no claim is made in this case for injury based upon such cause. The instruction should have been omitted.
The pleadings sufficiently present the questions discussed.
For .the reasons given, the judgment is reversed, and cause remanded for a new trial under proceedings consistent herewith.