Burton v. Missouri Pacific Railway Co.

Hall, J. — This was an action for damages on account of injuries sustained by plaintiff ’s son, an employe of defendant, in consequence of defective machinery. The plaintiff had judgment, from which the defendant appeals. The defendant urges two grounds for a reversal of the judgment. It complains that there was no allegation in the petition or proof at the trial that Charles Burton, the son, was the plaintiff ’ s servant, or, in other words, that there was no averment or proof of a loss of the son’s services by the plaintiff. In this the defendant is mistaken. The petition alleged: “ That plaintiff is the father of one Charles H. Burton, who was at the happening of the injuries hereinafter mentioned a minor of the age of twenty years ; that there was yet due plaintiff one year’s services from his said son by reason of his minority, which said services were of great value to plaintiff; that on the seventh day of April, A. D. 1886, defendant, without the knowledge or consent of plaintiff, employed his said minor son to perform the dangerous and hazardous duties of a section-hand to work on its said railroad.” And it also alleged : “ That by reason of the injuries aforesaid, plaintiff ’ s said son has been rendered a cripple for life ; that he is unable to perform any kind of labor, and is a burden for life upon this plaintiff.” By these allegations of the'petition, it was averred with sufficient- particularity that the plaintiff was entitled to his son’s services, and had been [458] deprived of them. The- evidence on this point was also-sufficient. The evidence further showed that the son, at the time of the accident, was receiving as wages $1.10 per day and boarded himself, and that when he drew his wages he took them home and gave them to his mother, and that they all went to the family ; and it also showed what it was worth to board and clothe the son during the remainder of his minority. The defective machinery complainedof was a defective handle of a hand-car. The defendant makes the point that the plaintiff’s evidence -showed that his son was present when the defective handle was placed in the hand-car, and that, since the son remained and performed the same services on the hand-car as before, without complaint, he must be deemed to have undertaken the risk of the danger which might result from, the then condition of the handle. In the first place the evidence did not show that the plaintiff’s son took any part in placing the defective handle in the car, it simply showed that he was in view of those who did place the handle in the car, he himself being engaged at the time at other business. And in the second place, the evidence all showed that the defect in the handle was a latent defect, and not one open to observation, after it was placed in the car, or at least at any time when, as disclosed by the evidence, the plaintiff’s son saw and used it. And the rule is that the servant 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.” Covey v. Railroad, 27 Mo. App. 179. Judgment affirmed. All concur.