Covey v. Hannibal & St. Joseph Railroad

Philips, P. J. This cause has been in the Supreme Court, and is reported in 86 Mo. 635. The judgment obtained by the plaintiff was reversed because of an error in the instructions, predicated upon knowledge of the defect in question of an agent of defendant, upon whom the law did not cast the duty of making such inspection. On the second trial this error was avoided. The plaintiff again recovered judgment; and defendant again appeals. The sufficiency of the evidence, to entitle' the plaintiff to have the opinion of the jury, was directly passed upon by the Supreme Court. To hold, as requested' by appellant here, would be to review and overturn the decision of the Supreme Court. We have not the power, even if we had the inclination, to do so. The evidence on the second trial, so far as I can gather from the statement of the case, is in no respect weaker on behalf' of plaintiff than on the first. I. It is now claimed, for the first time, that the allegations of the petition are not sufficient to warrant any evidence respecting the negligence of defendant in not discovering the latent defect in the handle of the car before putting the same in. The allegations of the petition are, “that the handle of said car, then being used and worked by plaintiff in propelling said car, was and had been made and prepared of brittle ash wood, wholly unfit and unsafe for such purposes, and had carelessly been permitted to remain and be used in said car, without inspection or examination by defendant,” etc. Then [177] further on, it is averred that the injuries ‘ ‘ so sustained by the plaintiff, were caused and brought, about by, and resulted from, the carelessness and negligence of defendant in failing and neglecting to furnish and provide for the use of plaintiff and his said co-employes, a safe and suitable hand-car and appliances for their use as aforesaid, and to keep the same supplied with safe, sound, and secure handles, adequate and suitable for such use, as defendant was bound and ought to have done.” This, we think, was sufficient, under the rule as laid down, and the authorities cited, in Crane v. Railroad (87 Mo. 594-5). This petition was deemed by the Supreme Court .(86 Mo. 639) as sufficient to present the two issues : (1) That the handle had been made from brittle ash wood, unfit for the use, and (2) that it had been permitted to remain, etc. Superadded to all which, defendant’s counsel, throughout the trial, construed the petition as sufficiently tendering the issue of defendant ’ s negligence in selecting the material for this handle. He made no objection to the introduction of this evidence, and in numbers of the instructions asked by him, and given by the court, he presented the case to the jury on this issue. Defendant was evidently not surprised, for it appears to have been equipped and prepared for this issue, and introduced all the evidence it would seem possible, bearing thereon. There is no merit in the objection. II. It appears, from defendant’s answer and evidence, that prior to this injury the defendant company had issued the following rule or regulation: ‘ ‘ Employes, of every rank or grade, are warned to see for themselves, before using them, that the machines or tools, which they are expected to use, are in proper condition for the service required, and if not, to put them in proper condition, or see that they are so put, before using them.” Defendant insists that as Eyan, who had charge of the gang of men, including the plaintiff, had notice of this [178] regulation, and had not discovered the defect, or had neglected to remedy or report it, this ivas the negligent act of a fellow-servant, for which plaintiff cannot recover. This is an extension of the rule, of the non-liability of the employer for the negligent act of a fellow-servant, beyond any adjudication known to us, and beyond, as we conceive, the bounds of reason. Such a rule can only affect those having notice of its existence. It would be a monstrous proposition to hold that, where such a rule of the company was made known to only one out of six employes, the disobedience of that one to observe it should be imputed to all his fellows. The plain language of the rule itself rejects such a construction: “employes, etc., are warned to see for themselves.” The employe is not required to see for anybody else; but each one, having the notice,. must see to it for himself. Employes “are warned.” How can a person be warned without “personal 'notice % ” Whether the plaintiff had notice of this regulation or not was a question solely for the jury. He testified that he did not know of it. Again, Eyan did not sustain the relation of a fellow-servant to the plaintiff. Eyan was placed, by the company, in charge of the gang of men, including the plaintiff. They did such work as, and how, he directed. They used such tools, and rode on such hand-car as he furnished and directed. In such case, Eyan “stood in the place of defendant,” as stated by Black, J., in delivering the opinion when this case was before the Supreme Court. And this is in accord with the recent rulings of that court. Moore v. Railroad, 85 Mo. 588; McDermott v. Railroad, 87 Mo. 285; Hoke v. Railroad, 88 Mo. 360. The first instruction, given by the court, of its own motion, accorded to the defendant all, if not more than, it was entitled to, bearing upon this question ; for it imputed to the plaintiff the result of the disobedience to this regulation by “Eyan, and the [179] men composing Ms crew” ; this would have been error against the plaintiff, unless it could be held that the phraseology of the instruction implied knowledge of the regulation on the part of the plaintiff. III. It is not the law, as indicated by the drift of appellant’s argument, that the employer can shift upon the •employe the high duty and obligation of-furMshing reasonably safe machinery for its operatives, on the assumption that it is the duty of the employe 1 ‘ to see that the machinery about and with which he was daily engaged, was in proper condition for the service required.” It was expressly held by the Supreme Court, in this case (86 Mo. 641), that, “it is the duty of the master to use reasonable and ordinary care and foresight in procuring appliances, and keeping the same in repair, to the end that the same shall be safe.” The same decision lays down the rule, in respect to the servant, to be that he is bound only to take notice of such defects as “are open to his observation, and of which he has knowledge” ; but he is not required “to search for latent defects.” The duty of discovering hidden defects, by careful inspection, devolves upon the employer. Conroy v. Iron Works, 62 Mo. 39; Thorpe v. Railroad, 89 Mo. 650. IV. Defendant complains of the action of the court in permitting expert testimony, based upon an inspection of the broken piece of the handle, exhibited by plaintiff in court, on the ground that there was not sufficient evidence of its identity. The plaintiff testified in chief that this was a part of the handle, .as broken off by him. Afterwards, the defendant had the witness state that he obtained the piece from the section foreman having charge of that part of defendant’s railroad track where this accident occurred, who told witness at the time he handed it to him, that, it was the same handle, picked up by him at the point of the accident. This evidence defendant brought out without objection on his part. It did not ask to have [180] the evidence of plaintiff excluded, but let it go to the jury, without objection. And, in addition to this, the plaintiff testified that he could tell it by having worked with it. This fact being thus before the jury, it was competent to admit the expert testimony for what it was worth. Besides, the piece thus exhibited corresponded with the broken handle in being broken close up to-the iron band through which it passed. The other part being left vpth the car, which remained in defendant’s possession, it had the ready means at its-control to disprove the alleged identity of the fragment so produced. Under such circumstances, it complains without cause. Y. The trial court gave the defendant every instruction it could, with any propriety, ask. We see no ground for disturbing the verdict, unless we take the case from the jury. This, the Supreme Court say, should not be done. It follows that the judgment of the circuit court should be affirmed. The other judges concurring, it is so ordered.