Hooks v. Mills

Smith, J., delivered the opinion of the court. Appellant’s request for a peremptory instruction was properly refused. It was for the jury to say whether or [100] not the derailment of the train was caused by a defective track, and, if so, whether or not such defect was the result of appellant’s negligence. If the evidence of Mrs. Mills that appellant, in the latter part of November, declined to permit Mr. Mills to assume control of the repairing of the track is true, the jury were warranted in not believing that he had been in such control since August 1st, as claimed by appellant. Appellee’s third instruction ought not to have been given. One of appellant’s defenses is that the defective conditions of the track was caused by Mr. Mills’ own negligence, for the reason that, at his request, he had been given entire supervision of the track, and that it thereby became his duty, not only “to direct the track-men where to work,” but also to inspect their work and see that it was properly done.- If this was Mills’'agreement, it was immaterial whether or not “he was an expert as to the safety of the railroad track.” There was also no evidence introduced by either party indicating that Mills had no “opportunity to judge of the sufficiency of the work” after it had been done. Even if otherwise proper, this instruction is clearly a charge upon the weight of the evidence. By the sixth instruction the court singled out and gave undue prominence to the fact that Mills’ duties as engineer were probably inconsistent with the duty of attending to the repairing of the track. This ought not to have been done. The ninth instruction is erroneous, for the reason that the evidence shows that the “proposition or suggestion” that Mills assume “charge of or responsibility for the maintenance or repair of the roadbed” was made by Mills to appellant, and not by appellant to Mills. A “person operating a railroad” does not owe to his servants the duty “to at all times have and maintain a safe roadbed.” The duty of the master to furnish the [101] servant with a safe place to work is not absolute, but it is simply to exercise reasonable care to furnish the servant with a reasonable safe place in which to work. The tenth instruction was, therefore, erroneous. The judgment of the court below is reversed, and the cause remanded. Reversed and remanded.