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Commentaries on the law of negligence in all relations online

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the statute, and is, with every car composing it, required to be fur-
nished with hand-holds; and the failure of the company to maintain
such hand-holds is negligence per se. ZA



» Tuck v. Louisville Ac. R. Co., 98
Ala. 150; s. c. 12 South. Rep. 168.

"Voelker v. Chicago &c. R. Co.,
116 Fed. Rep. 867. Evidence that a
certain car was brought to the sta-
tion from a station where there
were repair-shops at which all cars
arriving at that station were in-
spected, and, if necessary, repaired,
is sufficient to show due precaution
by a railroad company to repair the
car through alleged defects in
which an employe was injured in
attempting to couple it to a locomo-
tive at the former station, in the
absence of sufficient proof of the
Identity of the two cars: Van Tas-
sell v. New York Ac. R. Co., 1 Misc.
(N. Y.) 299; s. c. 48 N. Y. St. Rep.
767; 20 N. Y. Supp. 708. Circum-
stantial evidence held sufficient to
sustain a finding that the railroad
company was negligent in failing
to provide a safe fastening to the
key holding a drawhead-stem : Mis-
souri Ac. R. Co. v. Cox (Tex. Civ.
App.) v 55 S. W. Rep. 354; rehearing
denied, 56 S. W. Rep. 97 (no off.
rep.). Circumstances under which
the refusal to charge that the mere



absence of a nut from a bolt used
in fastening a stirrup to a car, and
the mere giving way of the stirrup
on the brakeman attempting to
mount the car, would not establish
negligence, was proper: Missouri
&c. R. Co. v. Bailey, 28 Tex. Civ.
App. 609; s. c. 68 S. W. Rep. 808.
The act of a car-inspector in mov-
ing a defective car into a position
where an employe upon a train is
likely to be injured is not a mere
act of omission or nonfeasance, for
which the company alone would be
liable, but is one of misfeasance,
which will render the car-inspector
liable to the injured employ 6: Hu-
kill v. Maysville Ac. R. Co., 72 Fed.
Rep. 745.

"Rogers v. Louisville Ac. R. Co.,
88 Fed. Rep. 462 (but as there was
no proof at all that deceased fell
from this particular car, or why
he fell, the court directed a verdict
for defendant).

"U. S. Comp. Stat. 1901, p. 3174,
§ 4; 27 U. S. Stat, at Large, ch. 196,
§ 4; Act Cong. March 2, 1893.

"Malott v. Hood, 99 111. App. 360,



487

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>g'



4 Thomp. Neg.] duties and liabilities of the master.

§ 4370. Ohio Statute Prohibiting Use of Defective Cars, etc., and
Charging Company with Knowledge of Defects. — A statute of Ohio
prohibits every railroad company from knowingly or negligently
using or operating any defective car or locomotive, or any car or
locomotive with defective machinery or attachments; and charges it
with knowledge, before and at the time of an injury to an employe, of
such defects; and makes proof of the fact of a defect prima facie
evidence of negligence. 85 In an action brought under this statute it
appeared that one car in a freight-train was a flat-car, loaded with
heavy 6tone, which car was without side or end boards or standards.
One of the stones fell off, whereby the train was wrecked, and a hrake-
man, the plaintiffs intestate, was killed. The administrator of the
deceased brought suit against the railroad company for damages for
negligently causing the intestate's death, averring negligence of the
railroad company in furnishing a defective and unsafe car. It was
held that the use of such flat-car was not the use of a defective car or
one with defective appliances within the meaning of the statute. 36
Another case holds that, in an action for personal injuries by a brake-
man, a railroad company, in order to overcome this statutory pre-
sumption that it knew of the defects causing the injury and was
guilty of negligence, must show that in fact it did not have such
knowledge, and that it used due diligence to ascertain and remedy
such defects. 87



Abtiole IX. Injuries to Railway Employes from Defects in

"Foreign" Cars.

Section Section

4373. Duty of a railway company in 4377. Duty of a railway company to

respect of cars received inspect "foreign" cars the

from another company. same as its own.

4374. This duty of inspecting "for- 4378. Nature and extent of the in-

eign" cars a positive and spectlon required,

unassignable duty. 4379. Duty exists although com-

4376. Theoretical measure of this polled by constitutional

duty—Degree of care re- mandate to receive and

quired in its performance. transport such cars.

4376. This duty gauged by the 4380. Receiving company may

standard of "ordinary break seals of "foreign"

care." cars if necessary to a suit-
able inspection.

"Bates' Ann. Ohio Stat. (2d ed.), Ohio C. C. 681; s. c. 11 Ohio C. D.

§ 3365-21; 87 Ohio Laws, 149; Act 406.

April 2, 1890. "Railway Co. v. Erick, 51 Ohio

"Toledo &c. R. Co. v. Beard, 20 St. 146; s. c. 31 Ohio L. J. 260; 37



N. E. Rep. 128.



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LIABILITY FOR INJURIES TO RAILWAY EMPLOYES. [2d Ed.



Section

4381. Duty of railroad company to

inspect the coupling-devices
of "foreign" cars.

4382. But not negligence to receive

and use on its own road
"foreign" cars having dif-
ferent coupling-devices from
its own.

4383. Railroad company not liable

for defects which a reason-
able inspection would not
disclose.

4384. Both the sending and the re-

ceiving company may be
liable.

4385. Rule of proximate cause op-

erates to charge sending
company for an Injury to
servant of receiving com-
pany.



Section

4386. Railroad company not liable

for defects which are plain-
ly marked and indicated so
as to put the risk upon the
employ^.

4387. Railroad company liable to its

employes for care of de-
fective "foreign" cars while
on its repair-tracks.

4388. Duty of Inspection of "for-

eign" cars extends to the
manner in which such cars
are loaded.

4389. No duty of inspecting "for-

eign" cars received for the
mere purpose of unloading.

4390. Injuries received in shifting

standard-gauge car-bodies
upon narrow-gauge trucks.



§ 4373. Duty of a Railway Company in Respect of Cars Received
from Another Company. — It is the duty of a railroad company, after
receiving cars from another company to he transported over its line,
to subject them to a reasonable inspection before attaching them to
its train or permitting them to be hauled therein, for the purpose of
ascertaining whether they are fit for service, and to reject them, if
they are found to be unfit, until they are suitably repaired; and it is
liable to one of its own employe's, injured by reason of its failure to
perform this duty. 1



1 Louisville Ac. R. Co. v. Davis, 91
Ala. 487; Denver Ac. R. Co. v.
Smock, 23 Colo. 456; s. c. 48 Pac.
Rep. 681 (owes to its employes the
duty of exercising reasonable pre-
cautions to see that a foreign car is
in proper repair); Sack v. Dolese,
137 111. 129 [but see Ohio Ac. R. Co.
v. Wangelin, 43 111. App. 324]; Chi-
cago Ac. R. Co. v. Gillison, 72 111.
App. 207; s. c. aff'd, 173 111. 264; 50
N. B. Rep. 657; Chicago Ac. R. Co.
v. Armstrong, 62 111. App. 228; Illi-
nois Ac. R. Co. v. Barslow, 94 111.
App. 206; Cincinnati Ac. R. Co. v.
McMullen, 117 Ind. 439; s. c. 20 N.
E. Rep. 287; Louisville Ac. R. Co. v.
Bates, 146 Ind. 564; s. c. 45 N. E.
Rep. 108; Missouri Pac. R. Co. v.
Barber, 44 Kan. 612; s. c. 44 Am. A
Eng. R. Cas. 523; 24 Pac. Rep. 969;



Atchison Ac. R. Co. v. Penfold, 57
Kan. 148; s. c. 45 Pac. Rep. 574
(where there is time and opportu-
nities for such inspection) ; Atchi-
son Ac. R. Co. v. Seeley, 54 Kan. 21;
Louisville Ac. R. Co. v. Williams, 95
Ky. 199; s. c. 15 Ky. L. Rep. 548; 24
S. W. Rep. 1; Budge v. Morgan's
Louisiana Ac. R. Ac. Co., 108 La.
349; s. c. 32 South. Rep. 535; Bomar
v. Louisiana Ac. R. Co., 42 La. An.
983; s. c. 8 South. Rep. 478; rehear-
ing denied, 42 La. An. 1206; s. c. 9
South. Rep. 244; Chandler v. New
York Ac. R. Co., 159 Mass. 589; Cof-
fee v. New York Ac. R. Co., 155
Mass. 21; Dewey v. Detroit Ac. R.
Co., 97 Mich. 343; s. c. 16 L. R. A. %
342; Sheedy v. Chicago Ac. R. Co.,
55 Minn. 357; 8. c. 57 N. W. Rep. 60;
Mateer v. Missouri Ac. R. Co., 105

489



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4 Thomp. Neg.] duties and liabilities of the master.

§ 4374. This Duty of Inspecting "Foreign" Can a Positive and
Unassignable Duty. — But this duty of a railroad company tp make a
reasonable inspection of cars which it receives from another company
and which its own employes are required to handle, is a positive duty



Mo. 320; Chicago Ac. R. Co. v. Cur-
tis, 51 Neb. 442; s. c. 71 N. W. Rep.
42 (not 'negligence to receive and
draw cars of another company
equipped with double buffers while
its own are equipped with single
buffers); Hayden v. Piatt, 84 Hun
(N. Y.) 487; s. c. 32 N. Y. Supp.
1144; 65 N. Y. St. Rep. 875 (com-
pany responsible for an injury to a
brakeman caused by the absence
of a nut from the top of a brake-
staff which held the lever fast to it,
notwithstanding an imperfect in-
spection made a short time before
the injury); Gottlieb v. New York
Ac. R. Co., 100 N. Y. 462; s. c. 1
Cent. Rep. 728 (injury resulted
from a drawhead or bumper which
was defective in construction, which
defect could have been easily ob-
served) ; Goodrich v. New York Ac.
R. Co., 116 N. Y. 398; s. c. 26 N. Y.
St Rep. 767; 6 L. R. A. 760; 41
Am. ft Eng. R. Cas. 259; 22 N. E.
Rep. 397; McDonald v. Fitchburg
R. Co., 19 App. Div. (N. Y.) 577;
s. c. 46 N. Y. Supp. 600; 80 N. Y. St.
Rep. 600; Dolan v. Burden Iron Co.,
62 App. Div. (N. Y.) 545; s. c. 71
N. Y. St. Rep. 145 (cars of different
roads coming to the different yards,
some having drawbars higher than
others, making coupling more dan-
gerous, excused where the injured
brakeman is aware of the fact);
Mason v. Richmond Ac. R. Co., Ill
N. C. 482; s. c. 18 L. R. A. 84&;
Leak v. Carolina Ac. R. Co., 124 N.
C. 455; s. c. 32 S. E. Rep. 884; Hunt
v. Caldwell, 22 Ohio C. C. 283; s. c.
11 Ohio C. D. 562 (defective eyebolt
excused); Dooner v. Delaware Ac.
Canal Co., 164 Pa. St 17; s. c. 10
Am. Rail. A Corp. Rep. 264; 30 Atl.
Rep. 269 (must use ordinary or
reasonable care to see that it is fur-
nished with such car-handles, lad-
ders, or safeguards as are fh com-
mon use); Jones v. New York Ac.
R. Co., 20 R. I. 210; s. c. 37 Atl.
Rep. 1033 [quoting with approval
Gottlieb v. New York Ac. R. Co., 100
N. Y. 462; affg s. c. 28 Hun (N. Y.)
637]; Wallingford v. Columbia Ac.
R. Co., 26 S. C. 258; Louisville Ac.

490



R. Co. v. Reagan, 96 Tenn. 128; s. c.
33 S. W. Rep. 1050; St. Louis Ac. R.
Co. v. Putnam, 1 Tex. Civ. App.
142; Eddy v. Prentice, 8 Tex. Civ.
App. 58; s. c. 27 S. W. Rep. 1063;
Missouri Ac. R. Co. v. Chambers, 17
Tex. Civ. App. 487; s. c. 3 Chic. L.
J. Wkly. 99; 43 S. W. Rep. 1090
(when bound to make an inspection
of the inside of a foreign car al-
though sealed) ; Galveston Ac. R.
Co. v. Nass (Tex. Civ. App.),
57 S. W. Rep. 910 (no off. rep.);
Missouri Ac. R. Co. v. Baker (Tex.
Civ. App.), 68 S. W. Repi 556 (no
off. rep.); Houston Ac. R. Co. v.
Milam (Tex. Civ. App.), 58 S.
W. Rep. 735 (no off. rep.); s. c.
rev'd on rehearing, on other
grounds (Tex. Civ. App.), 60 S. W.
Rep. 591 (no off. rep.) (company
permitting locomotive of another
company to be used in its own
yard); International Ac. R. Co. v.
Kernan, 78 Tex. 294; s. c. 9 L. R. A.
703; 44 Am. A Eng. R. Cas. 607; 14
S. W. Rep. 668; Southern Pac.
■Co. v. Winton, 27 Tex. Civ. App.
503; s. c. 66 S. W. Rep. 477; Texas
Ac. R. Co. v. Archibald, 75 Fed. Rep.
802; 8. c. 41 U. S. App. 567; Texas
Ac. R. Co. v. Archibald, 170 U. S.
665; s. c. £2 L. ed. 1188; Baltimore
Ac. R. Co. v. Mackey, 157 U. S. 72;
s. c. 39 L. ed. 624; 15 Sup. Ct. Rep.
491; Mackey v. Baltimore Ac. R.
Co., 19 D. C. 282; s. c. 18 Wash.
L. Rep. 767; Comb v. London Ac. R.
Co., 31 L. T. (N. S.) 613. Loaded
cars received from other railroads
form a part of the "works and ma-
chinery" of the company receiving
them, within the meaning of Mass.
St 1887, ch. 270, so that the com-
pany is not bound to use them in
its own train, if, on inspection, they
are found to be unsafe: Bowers v.
Connecticut River R. Co., 162 Mass. .
312; s. c. 38 N. E. Rep. 508; Peirce
v. Bane, 80 Fed. Rep. 988; s. c. 53
U. S. App. 297. When the foreign
car may be returned to the sending
company as defective: Atchison Ac.
R. Co. v. Mayers, 76 Fed. Rep. 443;
s. c. 46 U. S. App. 226; 2* C. C. A.
267.



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LIABILITY FOR INJURIES TO RAILWAY EMPLOYES. [2d Ed.

which it owes to its employes, and is an unassignable duty in the
sense which makes it responsible for the negligence of its inspector
whom it employs to discharge it. 2

§4375. Theoretical Measure of this Duty — Degree of Care Re-
quired in its Performance. — The railway company using such "for-
eign" cars is under the plain duty of subjecting them to such an in-
spection as will discover latent defects or dangers, which would not
be apparent to its employes required to use them. 8 This duty extends
to all defects which would be disclosed by a reasonably careful in-
spection. 4 For example, the fact that a car is received from another
road for transportation does not relieve the company from the duty
towards its own" employ 6 of using ordinary and reasonable care to
see that it is furnished with such car-handles, ladders, or other safe-
guards as are in common use. 5

§ 4376. This Duty Gauged by the Standard of "Ordinary Care." —

The duty of a railroad company as to "foreign" c^rs received in reg-
ular course of business for transportation over its lines is that of
exercising ordinary care in inspecting them to see if they are in
reasonably safe condition of repair, and if found to be out of repair,
to put them in a reasonably safe condition of repair, or notify its
employes of their condition. The ordinary care required is such care
as the time, place, means and opportunity, and the requirements and
exigencies of commerce, will permit. The company is not required
to resort to tests that are impracticable, or unreasonable and oppress-
ive, or which would be incompatible with the proper furtherance of
the business, and which are only required to insure absolute safety. 6

§ 4377. Duty of a Railway Company to Inspect "Foreign" Cars
the Same as its Own. — In some of the cases, the rule is broadly stated
that a railroad company which accepts and put6 into one of its trains
a car belonging to another company, is under the same duty to its

8 New Orleans Ac. R. Co. v. Clem- * Dooner v. Delaware Ac. Canal

ents, 40 C. C. A. 465; s. c. 100 Fed. Co., 1 164 Pa. St. 17; s. c. 10 Am.

Rep. 415; ante, § 3791. Rail, ft Corp. Rep. 264; 30 AtL Rep.

•Ante, § 3801; Baltimore &c. R. 269.

Co. v. Mackey, 157 U. S. 72; a. c. 39 • Louisville ftc. R. Co. v. Bates,

L. ed. 624; 15 Sup. Ct Rep. 491. 146 Ind. 564 (inspection need only

*Felton v. Bullard, 94 Fed. Rep. be m^de in the usual and ordinary

781; s. c. 42 Ohio L. J. 218; 14 Am. way, the way commonly adopted

ft Eng. R. Cas. (N. S.) 547; 37 C. C. by those in like business). See also,

A. 1; McDonald v. Fitchburg'R. Co., McDonald v. Fitchburg R. Co., 19

19 App. Div. (N. Y.) 577; s. c. 46 N. App. Div. (N. Y.) 577; s. c. 46 N.

Y. Supp. 600. Y. Supp. 600; 80 N. Y. St. Rep. 600.

491



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4 Thomp. Neg.] duties and liabilities of the mastek.

employes, in respect to defects therein, as if it were its own, 7 The
sound view is that a railroad company must inspect "foreign" cars
running over its road just as it is required to inspect its own after they
have been in use. 8 With respect to the cars of other companies
which it allows to come into its yard, and which, while there, are to
be moved and handled by its employes, a railroad company is bound
to use due diligence and care in seeing that the cars are safe to be so
handled by its servants; and such company cannot divest itself of
thi6 duty to its servants by a contract with such other companies
whose cars are used that the latter shall keep them in repair. The
general rule is that the employer is bound to use due diligence in
providing and maintaining safe machinery and instrumentalities to
be bandied and used by his employes, without regard to the owner-
ship of the same.

§ 4878. Nature and Extent of the Inspection Required. — It is said
that it does not follow from the foregoing rule that what may be
reasonable inspection for one of its own cars shall be demanded as



T Louisville Ac. R. Co. v. Davis, 91
Ala. 487; s. c. 8 South. Rep. 562;
Sack v. Dolese, 35 111. App. 636;
8. c. aff'd, on other grounds, 137
111. 129; 27 N. B. Rep. 62; Chicago
Ac. R. Co. v. Avery, 109 111. 314;
Bender v. St Louis ftc. R. Co., 137
Mo. 240; s. c. 37 S. W. Rep. 132;
Mateer v. Missouri Pac. R. Co.
(Mo.), 15 S. W. Rep. 970 (no off.
rep.); Union Stock Yards Co. v.
Goodwin, 57 Neb. 138; s. c. 77 N. W.
Rep. 357; 12 Am. ft Eng. R. Cas.
(N. S.) 502; Baton v. New York
Ac. R. Co., 163 N. Y. 391; s. c. 57
N. B. Rep. 609; rev'g s. c. 43 N. Y.
Supp. 666; 14 App. Div. (N. Y.) 20;
Dooner v. Delaware ftc. Canal Co.,
171 Pa. St 581; 8. c. 26 Pitts. L. J.
(N. S.) 227; 33 Atl. Rep. 415 (duty-
in respect to appliances on cars re-
ceived from other roads not higher
than that in respect to appliances
on its own cars); Jones v. New
York ftc. R. Co., 20 R. I. 210; fe. c.
3 Am. Neg. Rep. 496; 11 Am. ft Eng.
R. Cas. (N. S.) 414; 37 Atl. Rep.
1033 (grab-iron on top of car
loose) ; St. Louis ftc. R. Co. v. Put-
nam, 1 Tex. Civ. App. 142; s. c. 20
S. W. Rep. 1002; Jones v. Shaw, 16
Tex. Civ. App. 290; 8. c. 41 S. W.
Rep. 690; Southern Pac. Co. v. Win-
ton, 27 Tex. Civ. App. 503; s. c. 66
S. W. Rep. 477; Texas ftc. R. Co. v.

492



Archibald, 75 Fed. Rep. 802; s. c.
41 U. S. App. 567 (degree of care re-
quired of a railroad company to in-
spect cars coming from other roads
to be merely loaded and returned,
is not less than that as to cars to be
sent out upon its own road); New
Orleans ftc. R. Co. v. Clements, 40
C. C. A. 465; s. c. 100 Fed. Rep. 415.
It has been reasoned that the negli-
gence of the connecting line with
respect to the condition of the cars
before they were delivered to the re-
ceiving company cannot be imputed
to the latter; but its duty to its own
employes will be measured by what
it ought to have done while the cars
were In its possession: Illinois ftc.
R. Co. v. Barslow, 94 111. App. 206.
That the owner of a quarry, using
a car furnished by a railroad com-
pany to convey stone from its
quarry to the railroad, owes the
same duty to its employes in respect
to such car as though the car were
owned by it, — is held in Spaulding
v. W. N. Flynt Granite Co., 159
Mass. 587; s. c. 34 N. B. Rep. 1134.

• Gutridge v. Missouri Pac. R. Co.,
94 Mo. 468; s. c. 13 West. Rep. 644;
7 S. W. Rep. 476.

• Chicago ftc. R. Co. v. Avery, 109
111. 314; aff'g s. c. 10 111. App. 210;
s. c. on prior appeal, 8 111. App. 133.



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LIABILITY FOR INJURIES TO RAILWAY EMPLOYES. [2d Ed.

alone reasonable for a "foreign" car, received for through transit.
The time, place, and general opportunity for inspection, and the fact
that the "foreign" car comes to hand as one actually on trial, show-
ing its fitness, all should be considered. 10 In another case a state-
ment of the duty has been qualified by adding, where there is time
and opportunity to do so. 11 Another court makes a similar qualifica-
tion by stating the proposition with the additional clause that the
receiving company has had an opportunity to inspect the "foreign"
car. 12 But it should seem that if there has not been time and oppor-
tunity, the receiving company should make one. Another court
reasons that the railroad company performs its duty in respect to
"foreign" cars received for through transit, by employing sufficient
competent and suitable inspectors, acting under proper superintend-
ence, rules and instructions ; and in such case the inspectors are fellow
servants with brakemen while such cars are in transit, and until
ready to* be inspected for a new service, — as, their return. 1 * But this
holding necessarily repudiates the doctrine, so essential to the safety
of the servants of the railway company and of the public, that this
duty of inspection is a positive and unassignable duty, 14 and denies
the operation of the rule of respondeat superior with respect to it,
and does not represent the American law. The diametrical reverse
of the Massachusetts case was held by a United States Circuit Court
of Appeals in laying down the proposition that this duty of inspec-
tion is not discharged by the employment of a competent inspector
for that purpose, but the railroad company is answerable for the
negligence of its inspector under the rule of respondeat superior. 15
Another decision, rendered by a divided court, holds that one railroad
company, receiving a loaded car from another railroad company and
running it upon its own road, is not bound to repeat the tests which
are proper to be used in the original construction of such a car, but
may assume that all parts of the car which appear to be in good con-
dition are so in fact. 16 Repeating this language, it has been held by
another court that this duty of inspection does not render the re-
ceiving company liable to its own servants for an injury caused by a

M Alabama Ac. R. Co. v. Carroll, "Mackin v. Boston Ac. R. Co.,

84 Fed. Rep. 772; 8. c. 52 U. S. App. 135 Mass. 201; s. c. 46 Am. Rep.

442; 28 C. C. A. 207 (an inspection 456.

by train employes about the only "Ante, §§ 3791, 4374.

inspection practicable). "Felton v. Bullard, 94 Fed. Rep.

"Atchison Ac. R. Co. v. Penfold, 781; s. c. 42 Ohio L. J. 218; 14 Am.

67 Kan. 148.- A Eng. R Cas. (N. S.) 547; 37 C. C.

M Bender v. St Louis Ac. R. Co., A. 1.

137 Mo. 240; s. c. 37 S. W. Rep. "Ballou v. Chicago Ac. R. Co.,

132. 54 Wis. 257; s. c. 41 Am. St. Rep.

31; 11 N. W. Rep. 559.

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4 Thomp. Neg.] duties and liabilities of the master.

hidden defect in the "foreign" car which would not be discovered by
such an inspection as the exigency of the traffic permits. The re-
ceiving company is not required to repeat the tests which are proper
to be used in the original construction of such car, but it may assume
that all parts of the car which appear, upon ordinary examination, to
be in good condition, are in fact so ; but the duty of exercising reason-
able or ordinary care requires a more careful inspection of an old,
dilapidated car than of one which presents a good appearance to
casual observation. 17 It has been held that where the "foreign" car
is received for a long journey, — for example, six hundred miles, — a
single inspection at the receiving-station is not, as matter of law,
sufficient; but it may become the duty of the receiving company, in
the exercise of ordinary or reasonable care, to cause it to be inspected
at other inspection-stations during its journey. 18 It has also been
held that the fact that the cars received from the other road will be
only used for a short time or carried for a short distance will not re-
lieve the company receiving them from the duty toward its own
employes to make such reasonable inspection. 19

§ 4379. Duty Exists Although Compelled by Constitutional Man-
date to Receive and Transport such Cars. — A railroad company is not
exonerated from the performance of this duty by a constitutional
mandate compelling them to receive the cars of other companies and
take them over its line; since such a mandate must be construed
reasonably, and it will not be so construed as to make it the duty of
a railway company to receive cars which are in an unsafe condition,
and so. defective in construction as to render them unsafe for those
who are required to handle them. 20 But, on the other hand, a rail-
way company will not be imputable with negligence where, in obedi-
ence to constitutional or statutory mandates f of this kind, it receives
and transports the cars of other companies, which cars are in sound
condition, although differing in their coupling-apparatus from those
of the receiving company. 21

"Louisville Ac. R. Co. v. Bates, "Atchison Ac. R. Co. v. Penfold,

146 Ind. 564; s. c. 45 N. E. Rep. 57 Kan. 148; s. c. 45 Pac. Rep.

108. Case where the action failed 574.

because of the failure to indentify "Louisville Ac. R. Co. v. Wil-

the car-repairer whose duty it was Hams, 95 Ky. 199; s. c. 15 Ky. L.

to make the inspection, and to Rep. 548; 24 S. W. Rep. 1. To the

whom it was claimed notice was same effect under Miss. Const.,



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