Dedrick v. Missouri Pacific Railway Co.

Ellison, J. — The only question presented to us by the appellant is as to the plaintiff’s case on the evidence. A demurrer was interposed at the close of plaintiff’s testimony which was overruled, and of this, defendant complains. [436] The evidence tended to show that plaintiff was working the lever in propelling the car, under the direction of the section foreman. That he was doing his duty and on an upward stroke of the lever or handle it broke, causing him to fall off and receive the injury. That the handle was made out of an old tie, which had been used in the track and thrown out as being unfit for further use ; that it was worm eaten and brash, and that a reasonable examination would show it not one-fourth strong enough for the purposes for which it was used by defendant. The evidence further tended to show that plaintiff was not present when the handle was made, and was not then in the employment of the company, and that a casual examination of the handle would not discover what sort of one it was, but a reasonable examination would. This evidence was ample upon which to submit plaintiff ’ s case to the jury. It has been repeatedly held that it is the duty of the master to use reasonable and ordinary care and foresight in procuring appliances and in keeping the same in repair, to the end that the same shall be safe. Not that he is an insurer of their safety, but that he shall make a reasonably diligent effort to have them safe and to keep them so. The servant has a right to rely upon the master performing this duty. So it is held that knowledge on the part of the agents of defendant, who are intrusted with the duty of procuring the machinery and keeping the same in repair, is to be attributed to the defendant. But defendant contends that though the evidence shows the section foreman made this handle out of the castaway tie, yet there is nothing connecting the defendant with his knowledge, or showing that it was his duty to supply the handle; It is enough to say of this, that defendant seems to have used the handle from October, when it was made, till the following April, when it broke, and that the evidence tends to show that during any of thi time a reasonable inspection would have discovered its defective character. In the case of Covey v. [437] Ry. Co., Sup. Ct. of Mo., it is said: “There is no direct -evidence in this case that the defendant or its agents at any time knew the handle was defective. There is evidence however tending to show that it was made of a bad piece of timber and was defective, and that this would have been discovered by the use of reasonable care and foresight in the construction of the car and its equipments.” See, also, Siela v. Ry. Co., 82 Mo. 435. The case was properly submitted to the jury for their judgment on the facts, and is, therefore, with the concurrence of the other judges, affirmed.