Gerlach v. Detroit United Railway

Brooke, J. (after stating the facts). 1, 2. Referring to the motion, for a directed verdict, we need say no more at this point than that in our opinion the case presented on the part of the plaintiff was clearly one for the jury, under proper instructions. 3. Did the court err in refusing to receive testimony offered on behalf of defendant as to the purpose the handhold was intended to serve, and charging in respect thereto as he did ? We think not. No testimony offered upon that question could have added to the knowledge already in the possession of each of the jurors. The use of the appliance is absolutely obvious. It is intended primarily as an aid to passengers in boarding and alighting from cars, but, when cars are crowded, it is frequently used by passengers to enable them to maintain themselves in a position upon the car which without its use would be impossible. It is intended for use by all who are invited to become passengers upon the cars of defendant. As, in its invitation to the public, no discrimination is or can be made by defendant in favor of those light in weight or against those who are heavy, it follows that defendant’s equipment must be such as to reasonably meet the demands of all. The handhold is frequently subjected to severe strain. Appliances .of this character, devoted to such uses, impose upon those who furnish them the duty of maintaining a very high factor of safety. The infrequency of such accidents as the one which caused the plaintiff’s injury would indicate that both manufacturer and operator recognize this principle. Common experience teaches every one the character of the use to which the handhold is put. The defendant cannot be permitted to [484] say that it was not designed to be used in a manner which it daily permits and invites. It was not error to exclude the testimony offered, nor to charge the jury in accordance with the views here indicated. 4, 5. We are of opinion that to have given this request to charge without qualification would have amounted to error under our decisions. . The plaintiff’s case was predicated, not only upon the fact that the handhold pulled out and the accident happened, but upon evidence that the wood underneath the lugs was decayed to such an extent that the screws drew out, and upon further evidence that the appearance of the wood immediately outside the lugs was such as might reasonably lead a careful and prudent inspector to suspect the existence of decay in the timber. Such evidence, coupled with the failure of the appliance, we think, warranted the court in submitting the question to the jury, who, in turn, might draw an inference of negligence on the part of defendant from the failure of the handhold and the happening of the accident under the circumstances disclosed by the testimony. Upon this point the following Michigan cases will be found instructive: Barnowsky v. Helson, 89 Mich. 523 (50 N. W. 989, 15 L. R. A. 33); Stoody v. Railway Co., 124 Mich. 420 (83 N. W. 26); La Fernier v. Wrecking Co., 129 Mich. 596 (89 N. W. 353); Howell v. Railway Co., 136 Mich. 432 (99 N. W. 406); Sewell v. Railway, 158 Mich. 407 (123 N. W. 2); Niedzinski v. Electric Co., 160 Mich. 517 (125 N. W. 409); Mirabile v. Simon J. Murphy Co., 169 Mich. 522 (135 N. W. 299). We are of opinion that the instructions of the court with reference to the duty of inspection were proper. It is obvious that the handhold is, so far aB the safety of the passenger is concerned, one of the most vital parts of the car. We may say of defendant here, as was said of defendants in the case of Scott v. Athletic Ass’n, 152 Mich. 684 (116 N. W. 624, 17 L. R. A. [N. S.] 234, 125 Am. St. Rep. 423, 15 Am. & Eng. Ann. Cas. 515): [485] “ They were not insurers of safety, they did not contract that there were no unknown defects, not discoverable by the use of reasonable means; but, having constructed the stand, they did contract that, except for such defects, it was safe.” In the case of Texas, etc., R. Co. v. Allen, 114 Fed. 177 (52 C. C. A. 133), which upon the facts much resem.bles the case at bar except that there an employe instead of a passenger was injured, the court of appeals for the fifth circuit approved of the following definition of the word ‘ ‘ inspection: ” “ e Inspection,’ gentlemen, as used in the court’s charge, is an inquiry, by actual observation, into the state, efficiency, safety, and quality of the thing inspected. Inspection of the appliances and instrumentalities in use by a railway company should not rest alone upon the vision, because there are many defects, the existence of which could be ascertained by reasonable and ordinary tests which involve the exercise of senses other than the sense of vision. I should say the railway company would be liable for those defects in its appliances and instrumentalities which, in the course of inspection, could be perceived —that is, capable of coming under the cognizance of any one or more of the senses of man in the exercise of ordinary care. Inspection not only involves looking at cars and appliances, but as well all those tests which would ordinarily be used to ascertain the condition of cars and appliances that a reasonably prudent man would use in the exercise of such an undertaking.” The charge, as a whole, we think, presented the question of defendant’s negligence fairly. No error is discovered in the record. The judgment is affirmed. Moore, O. J., and Steere, MoAlvay, Stone, Ostrander, and Bird, JJ., concurred. Blair, J., did not sit.