Berry v. Director General of Railroads

The following opinion was filed January 11, 1921: Vinje, J. The law under which recovery is sought, sec. 1 of the act of April 22, 1908 (35 U. S. Stats, at Large, 65, ch..'49), provides in substance that every common carrier by railroad while engaged in interstate commerce shall be [476] liable in damages to any person suffering injury while he is employed by such carrier in such commerce where such in- • jury results in whole or in part from the ■ negligence i of such carrier or by reason of any defect- or insufficiency due to its negligence in its cars, etc. It will be seen that recovery is contingent upon proof of negligence on the part of the carrier. Iiére the carrier’s negligence clainjted is the failure to inspect the car, discover the decayed condition of the sills and corroded state of the bolts, and-disclose such decayed and corroded conditions to plaintiff beforejhe was set to work upon the car. Discussing the subject upon the question of contributory negligence plaintiff’s counsel, say: “After the transom came down it was found that the bolts stripped because of their corroded condition, and the'tops of some of the sills were so badly decayed that the bolts pulled through from four to five inches of the decayed matter. Because of the construction of the car as described and the fact that the sills were decayed from above the plaintiff could not by the exercise of ordinary care know of this condition ; neither could he know that the bolts were corroded within and above the nuts because they were bidden frc-m view.” The above we think is a fair statement of the situation, though defendant claims there was no decay or corrosion but only a split visible in the sills. Since the sills and bqlts were covered above by planks or boards forming the floor of the car, and were also covered below by the insulation, it is apparent that no inspection of the same could be made without taking this part of the car to pieces. We shall not here attempt to state the federal rule as to the duty of one carrier to inspect cars coming to it from another carrier, further than to state that such rule does not require the severing of integral parts of the car in order to discover possible decay or corrosion within. Nelson v. Southern R. Co. 246 U. S. 253, 38 Sup. Ct. 233, 62 L. Ed. 699. A rule requiring that would almost wholly arrest interstate commerce. It is therefore apparent that any reasonable [477] inspection made by defendant would not have disclosed the alleged defect. Hence, no injury resulting in whole or in part from any negligence of the defendant has been shown. Besides, whatever duty defendant owed its employees who were in the active operating service where cars and appliances are presumed to be in a reasonably safe state of repair for such service, it owed no duty to a car repairer, for when cars come to him it is because they are defective and he is to' remedy the defect, and in doing so conditions constantly change. Strehlau v. John Schroeder L. Co. 142 Wis. 215, 125 N. W. 429; Brown v. Conners, 149 Wis. 403, 135 N. W. 857; Rosholt v. Worden-Allen Co. 155 Wis. 168, 144 N. W. 650. In the instant case there is no claim that plaintiff was misled by the directions as to the needed repairs, and it is conceded that he had the choice of method of making them and was furnished adequate tools, appliances, and help for the repairs to be made. Regrettable as the injury to plaintiff is, we find no neglect of duty on the part of defendant and so do not reach or decide the question of plaintiff’s assumption of risk. By the Court. — Judgment affirmed. A motion for a rehearing was denied, with $25 costs, on March 8, 1921.