Baltimore & Ohio S. W. R. R. v. Greer

Mr. Presiding Justice Bigelow delivered the opinion of the court. The ground on which appellee seeks to recover is stated in his declaration as follows : “ That the defendant negligently had and allowed the draw bar of a freight car to be defective, out of repair and insufficient, by certain means whereof, while the plaintiff was then and there endeavoring to couple said car to another car, with due care and diligence, the said draw bar broke, gave way and pushed back, and in consequence thereof, the plaintiff’s deft arm was then and there caught between the buffers of said car and so crushed and injured that amputation of the same became necessary.” At the close of the evidence in the case, appellant’s counsel moved the court to exclude the evidence from the jury, and to instruct the jury to find the defendant not guilty, but the motion was denied and the instruction refused, to which rulings of the court appellant severally excepted; thereupon appellant moved the court to arrest judgment on the verdict of the jury, which motion was denied and defendant excepted, and now assigns as error the several rulings of the court, with other errors which it will be unnecessary to notice. It is apparent that appellee had no knowledge of any. defect in the draw bar, and the pretended knowledge he had was mere conjecture, and of no value whatever as evidence. The entire case of the plaintiff seems to have been tried upon the theory that all he was required to establish by evidence, was the fact that he was injured while endeavoring to couple cars on appellant’s railroad, and that is all he has established. This is not a case where the rule, res ipsa loquiter applies, and before the plaintiff could recover, he was required to prove some affirmative act or acts of negligence, by appellant, that was the proximate cause of the injury, or to prove that appellant had omitted to perform some duty that the law required of it, which omission was the proximate cause of the injury; until he had done that, appellant was under no obligation to prove anything. Sack v. Dolese et al., 137 Ill. 129. Even if appellee had proven that the draw bar had become broken, which caused it to go back under the car, that would not of itself have been sufficient to base a recovery upon. Railroad companies are not insurers of the lives and limbs of their employes while in their service, any more than private individuals are. A brakeman of a railroad company assumes the risks and dangers incident to the business in which he is engaged, and while the company is bound to furnish suitable and safe machinery and appliances for his use, when this is done the company is not liable for an injury resulting from the breaking or failure of the machinery, unless it is shown that it has in some way or manner been guilty of negligence in regard thereto. De-Graff v. N. Y. C. & H. R. R. R. Co., 76 N. Y. (31 Sickles) 125. The rule of law that applies to a brakeman applies equally to a switchman engaged in switching cars in a railroad yard. The testimony of plaintiff’s witnesses that in their opinion the reason the draw bar went back under the car and remained there was that the spring or springs of the draw bar were broken, oras some of them said were “ weakened,” was purely guessing and nothing else, and was not evidence at all, and the guessing was bad, as was shown by the evidence of the car repairer and his assistant, who inspected the draw bar a short time after the accident, and found it intact—no spring broken and no follower-plate broken or gone. The evidence of these witnesses is entirely uncontradicted and gives strong support to the theory of appellant’s witnesses, that the bumpers of the cars came together because the cars were running on a curved track. But if the plaintiff had proved that a defect in the draw-bar caused the injury, that would not have been sufficient to entitle him to recover, for such a thing might well exist and appellant still be free from any negligence, if the defect was such that it could not have been discovered by a careful inspection of the draw bar; and the burden of proving that it might have been discovered by such an inspection, rested on the plaintiff. Sack v. Dolese et al., supra. An examination of that case, as well as the case of De-Graff v. N. Y. C. & H. R. R. Co., above quoted, will disclose each to be a much stronger case for the plaintiff than the case we are considering, yet in the former case the court directed a verdict for the defendant, and in the latter case the court directed a non-suit, which is substantially the same as directing a verdict of not guilty. In the case of C. C. & I. C. Ry. Co. v. Troesch, 68 Ill. 545, in stating the duty of the master to furnish the servant with proper and sufficient machinery and implements, the court says: “ The cases in this state and sister states are, with great unanimity, to the effect, if injury arises from a defect or insufficiency in the machinery or implements furnished to the servant by the master, knowledge of the defect or insufficiency must be brought home to the master, or proof given that he was ignorant of the same through his own negligence or want of care, or, in other words, it must be shown he either knew or ought to have known, the defects which caused the injury.” Applying that rule to the facts in this case, wherein can it be said that appellant was negligent? The utmost that can be replied is, that appellant should have had the car inspected before attempting to couple to it. There might be some force in such a reply if appellee had inspected the draw bar, or had caused it to be inspected, and had found it broken, as he alleged jn his declaration was the case; but he did nothing of the kind, nor did he examine, or have any other person examine to learn if a spring was weakened or broken, or a follower-plate was broken or gone. Eothing whatever is disclosed by plaintiff or his witnesses that shows appellant guilty of any negligence that contributed to the injury of appellee. We adopt the language of Chief Justice Church in closing his opinion.™ the De Graff case, to wit: “ This accident was an unfortunate one, and the plaintiff received a severe injury in the service of the defendant without any apparent default of his, and while it is a case which should commend itself to the generosity of the employer, we think it can not be sustained without violating established principles of law.” The court erred in refusing to instruct the jury to find the defendant not guilty, and for that error the judgment of the City Court of East St. Louis is reversed. Finding of Facts.—We find that appellant is not guilty of any negligence that contributed to the injury of appellee, for which, this suit was brought.