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Commentaries on the law of negligence in all relations online

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given of the defect: Illinois ftc. R. § 184,— see Illinois Ac. R. Co. v.

Co. v. Barslow, 94 111. App. 206. Price, 72 Miss. 862; s. c. 18 South.

"Missouri Ac. R. Co. v. Baker Rep. 415.

(Tex. Civ. App.), 68 S. W. Rep. 556 * Thomas v. Missouri Ac. R. Co.,

(no off. rep.). 109 Mo. 187; s. c. 18 S. W. Rep.


494 '

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§4380. Receiving Company may Break Seals of "Foreign" Cars
if Necessary to a Suitable Inspection. — Negligence may be imputed
to a railroad company because of its failure to inspect on the inside a
car received from another company, although such car was sealed,
where a reasonable inspection of the car from the outside would have
shown signs of a defect in the ladder on the side of the car, and an
inspection from the inside was required to see whether or not it was
actually safe. If an inspection from the outside should indicate the
necessity of an inside inspection, it would be the i duty of the com-
pany to inspect from the inside though it had to break a dozen seals
and unload the entire car; or else it should decline to haul the car. 22

§ 4381. Duty of Bailroad Company to Inspect the Coupling-De-
vices of "Foreign" Cars. — It need not be said that a railroad company
is under the duty of inspecting and of repairing when necessary the
coupling-apparatus upon cars received from other companies to be
transported over its own road. 28 Negligence has been ascribed to
railroad companies where they have received from other companies,
and placed in charge of their own servants, cars having defective
bumpers, 24 and cars having no bumpers at all, 26 and freight-cars with
defective beams, 29 and cars having draw-bars so constructed that they
will slide past the cars of the company receiving them. 27

§ 4382. But Not Negligence to Receive and Use on Its Own Road
"Foreign" Cars having Different Coupling-Devices from Its Own. —

"Missouri Ac. R. Co. v. Cham- doing so; and the fact that the cars

bers, 17 Tex. Civ. App. 487. belonged to other companies did

"Post, § 4406, et seq.; Chicago Ac. not exonerate the defendant, since

R. Co. v. Gilllson, 72 111.' App. 207; it was bound to inspect such cars

s. c. aff'd, 173 111. 264; 50 N. B. Rep. the same as its own, and was re-

657; Bender v. St. Louis Ac. R. Co., sponsible for the consequences of

137 Mo. 240; Goodrich v. New York such defects as ordinary inspection

Cent. Ac. R. Co., 116 N. T. 398; s. would disclose. It must either

c. 26 N. Y. St. Rep. 767; 22 N. B. remedy the defects or refuse to take

Rep. 397; rev'g s. c. 3 N. Y. St. the cars: Gottlieb v. New York Ac.

Rep. 774 (following Gottlieb y. New R. Co., 100 N. Y. 462; aff'g s. c. 29

York Ac. R. Co., infra). A rail- Hun (N. Y.) 637.

road company was transporting M Gottlieb v. New York Ac. R. Co.,

over its own road two cars of differ- 100 N. Y. 462; aff'g s. c. 29 Hun (N.

ent gauge belonging to other com- Y.) 637.

panies. When a brakeman at- "Mason v. Richmond Ac. R. Co.,

tempted to couple them in the 111 N. C. 482; s. c. 18 L. R. A. 845;

night-time the drawheads slipped 16 S. B. Rep. 698; 53 Am. A Bng.

past each other, and, the bumpers R. Cas. 183.

projecting only thre Inches on each * Missouri Pac. R. Co. v. Barber,

car, he was crushed. The defect 44 Kan. 612; s. c. 24 Pac. Rep. 969;

was held to be an obvious one, and 44 Am A Bng. R. Cas. 523.

easily remedied, and the company "Ohio Ac. R. Co. v. Wangelin,

was guilty of negligence in not 43 111. App. 324.


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

Outside of these considerations, it seems to be a sound conclns
that it is not actionable negligence in a railway company to rece
and haul over its own road cars of another company having coupli
arrangements of a different pattern from those which are in use
its own road ; 28 or, at least, that when it does receive such cars, a
commits them to the charge of brakemen who are well acquainl
with their structure, and who, consequently, know the risk whi
will be run in coupling them to the cars in use upon the partial
road, such brakemen assume the ordinary risks which arise from sn
difference in the coupling-arrangements. 2 * For example, it is not n<
ligence, as matter of law, for a railroad company to receive "foreig
cars, the draw-bars of which are lower than those of its own cars, a
to furnish such cars to its own employes to handle in connection wi
its own care. And if the draw-bar complained of is shown to be
the same height as those on cars in general use throughout the cot:
try, then the company receiving and using a car having such a dra
bar, is, as matter of law, not imputable with negligence. 80

§ 4383. Railroad Company Not Liable for Defects which a R<
sonable Inspection would Not Disclose. — Outside of this, it is alm<
a truism that the railway Company will not be liable because,
making such an inspection, it failed to discover all possible defec
latent or patent; it is only liable for such as should have been d
covered by the exercise of reasonable care and skill. 81 It is hen
not responsible for injuries to its own employes from latent defet
which could not be discovered by such an inspection as the exigenci
of the traffic will permit in the exercise of reasonable care. 82

n Louisville &c. R. Co. v. Boland, 199. When, therefore, the wh

96 Ala. 626; s. c. 18 L. R. A. 260; evidence showed beyond dispi

43 Am. & Eng. R. Cas. 169; 11 that the sole cause of the inji

South. Rep. 667. was the use of one bolt of insn

"Kohn v. McNulta, 147 U. S. 238. cient length in fastening a slat

Examine Baldwin v. Chicago &c. R. the ladder of a foreign freight-c

Co., 50 Iowa 680; Indianapolis Ac. together with the somewhat

R. Co. v. Flanigan, 77 111. 365; cayed condition of the wood at t

Michigan Cent R. Co. v. Smithson, bolt, and there was no external

45 Mich. 212; Hathaway v. Michi- dication of these defects, and the

gan Cent. R. Co., 51 Mich. 253; jured employs had been in 1

Thomas v. Missouri Pac. R. Co., habit of using the same car and I

109 Mo. 187; s. c. 18 S. W. Rep. same ladder,— it was held that i

980 (no matter how peculiar or railway company was not negligi

hazardous their couplings are). in assuming that the car was

m Wabash R. Co. v. Farrell, 79 111. fact in good condition, since it

App. 508; s. c. 31 Chic. Leg. N. 199. peared to be so, and consequen

n Allen v. Union Pac. R. Co., 7 that there was no error in direct!

Utah 239; 8. c. 26 Pac. Rep. 297. a nonsuit: Ballou v. Chicago

* Wabash R. Co. v. Farrell, 79 R. Co., 54 Wis. 257; s. C. 41 A

111. App. 508; s. c. 31 Chic. Leg. N. 'Rep. 31.


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§4384. Both the Sending and the Receiving Company may be

Liable.— Both the railroad company employing one injured by a de-
, fective car delivered to it by another company, and the latter com-
pany, are liable to such emplo^ for the injury sustained, provided
such defect be due to the negligence of such companies. 8 *

§4385. Rule of Proximate Cause Operates to Charge Sending
Company for an Injury to Servant of Receiving Company. — Where '
companies controlling connecting lines transport over their respective
lines loaded freight-cars of the .other, under a traffic arrangement by
which they share the earnings ; and one company delivers to the other
to be transported over its line a car that is so defective in its equip-
ments as to be dangerous to handle, which should have been inspected
and repaired before being so delivered; and in consequence of such
defective condition of the car an employ^ of the receiving company is
injured while handling it in the course of his employment, — the negli-
gence of the sending company in delivering the car for transportation
without proper inspection and repair is the proximate cause of the
injury, although the employer company should also have inspected 1
the car when it 'was received* and was negligent in that duty; the
negligence of the receiving company, while contributing to produce the
injury, is not an independent cause breaking the causal connection
between the injury and original negligence of the company furnish-,
ing the car for transportation ; and either company, or both, may be
held responsible. The company delivering the car to the other com-
pany should anticipate that employes of the latter company would
go upon the car and handle it, and thereby be exposed to the danger
of receiving injury, as a natural and probable consequence of its
defective condition, and owes such employes the duty of using reason-
able care to discover and remove its dangerous defects before it is
delivered. 84

■» Pennsylvania R. Co. v. Meyers, R. Co., 124 Mich. 37; s. c. 82 N. W.

12 Ohio C. C. 263. . It has been held Rep. 828. It would seem that the

that where one railroad company decision ought to have been the

delivers a car-load of lumber to other way. The negligence of the

another railroad company for trans- master of the servant who was

shipment over its line, and the lat- killed ought not to operate to re-

ter company neglects to inspect the lieve the company loading the car

manner in which the lumber is from liability, under the present

loaded, and some of it, by reason doctrine with respect to imputed

of not being properly loaded, falls negligence: Vol. I, § 77.

on one of the switchmen of the re- M Pennsylvania R. Co. v. Snyder,

.ceivlng company and kills him, the 55 Ohio St. 342; s. c. 45 N. E. Rep.

former company is not liable for 559.
his death: Lellls v. Michigan Ac.

vol. 4 thomp. nkg.— 32 497

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

§4386. Bailroad Company Not Liable for Defects which are
Plainly Marked and Indicated bo as to Pat the Bisk upon the Em-
ploys. — According to the view of another court, a railroad company
is not liable for delivering to a coal company a car having defects
which are plainly marked and indicated, so as to enable the employes
of the coal company to avoid injury from them, and so as to put upon
such employes the risk of injury from using them. On this ground
it was held that a railroad company was not liable for an injury to the
employe* of the coal company, caused by one missing brake and one
defective brake on a car loaded with coal and delivered to the coal
company to be unloaded, where the defects were plainly marked on
ohe end of the car with chalk in large, plain letters, "No brake," and
on the other end, '"Bad brake," and the car was placed on a trestle in
this condition by a fellow servant of the injured employ^. 85 It was also
reasoned in the same case that the coal company was not liable ; since
the defective car was not a part of their machinery, used in their busi-
ness, but was the thing worked upon, not the thing worked with; and
the negligence in placing the car on the trestle, though manifest, was
that of a fellow servant. 85 *

§ 4387. Bailroad Company Liable to its Emplqyls for Care of De-
fective "Foreign" Cars while on its Repair-Tracks. — A railroad com-
pany may also become liable to its employes for its want of care of
defective "foreign" cars while on its repair-tracks, in consequence of
which its own employes are injured. Thus, a railroad company which
has had transient cars of other companies in its use or employment
regularly inspected, condemned, and ordered to be sent to the shops
for repair, and has had them regularly tagged so as to warn employes
of that fact, does not fully discharge its duty towards one engaged
in the performance of night service as a car-coupler unless the tags
are of such size and character as to bring the condemnation of the
cars to his attention, or he is otherwise informed of the fact. 86

§ 4388. Duty of Inspection of "Foreign" Cars. Extends to the
Manner in which such Cars are Loaded. — This inspection has been
held to extend to the manner in which such cars are loaded; so the
fact that loaded cars were received by a railroad company from an-
other road does not relieve the company from liability for injuries to

• Rehm v. Pennsylvania R. Co., » Meyers v. Illinois Ac. R. Co., 49
164 Pa. St. 91; s. c. 30 Atl. Rep. .La. An. 21; s. c. 21 South. Rep.,
356. 120.

"a Rehm v. Pennsylvania R. Co.,


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a brakeman, caused by the improper manner in which they were
loaded. 87

§ 4389. Ho Duty of Inspecting: "Foreign" Can Received for the
Mere Purpose of Unloading. — It,has also been held, that the rule re-
quiring such an inspection is not applicable to companies or persons
on whose sidings loaded cars are delivered for the purpose of permit-
ting them to unload the freight. 88

§ 4390. Injuries Received in Shifting Standard-Gauge Car-Bodies
upon Narrow-Gauge Trucks.— The same court has held that, the shift-
ing of broad-gauge or standard car-bodies upon narrow-gauge trucks
for transportation being a regular part of the business of narrow-
gauge railroads, the narrow-gauge company is not liable for the death
of an employ6 caused by the tipping over of a broad-gauge or standard
car-body on which he was riding, where there is no showing that the
way in which the shifting was done was either dangerous or un-
usual. 89

Article X. Injuries to Railway Employes from Defective
Brakes, Brake-Beams, Chains, etc.


4393. Liability of railway compan-

ies to their employes for
injuries from defective
brakes, brake-beams,
chains, etc.

4394. Duty of exercising reasonable

care with respect to such
appliances a positive and
unassignable one.

4395. Company under a duty of con-

, tinuing inspection.

4396. Not liable for what latent de-


4397. Defect must have been the

proximate cause of the in-


4398. Company must have had

knowledge or means of
knowledge and opportunity
to repair.

4399. Injuries arising from the fail-

ure of air-brakes to work.

4400. Conditions of fact under

which company held liable.

4401. Circumstances under which

company not liable.

4402. Illinois statute requiring

brake on rear car of train.

4403. South Carolina statute requir-

ing brakes on certain

"Dewey v. Detroit Ac. R. Co., 97 Pa. St 518; s. c. 23 L. R. A. 448;

Mich. 329; s. c. 16 L. R. A. 342; 12 27 Atl. Rep. 1043.

Rail. & Corp. L. J. 154; 52 N. W. "Titus v. Bradford Ac. R. Co.,

Rep. 942. But see Mexican Ac. R. 136 Pa. St. 618; s. c. 8 Lane. L.

Co. v. Shean (Tex.), 18 S. W. Rep. Rev. 93; ,26 W. N. C. (Pa.) 472; 21

151 (no off. rep.). Pitts. L. J. (N. S.) 165; 47 Phila.

"McMullen v. Carnegie Bros., 158 Leg. Int. 496; 20 Atl. Rep. 517.


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

§ 4383. Liability of Railway Companies to their Employes for In-
juries from Defective Brakes, Brake-Beams, Chains, etc. — Under the
principles of this chapter, railway companies have frequently been
held liable in damages to their employes for injuries sustained by
them through the failure of such railroad companies to exercise rea-
sonable care and skill in providing and maintaining reasonably safe
brakes, brake-beams, chains and similar appliances on their cars. 1

§ 4394. Duty of Exercising Reasonable Care with Respect to such
Appliances a Positive and Unassignable One. — And here, as in other
like cases, 2 this duty, being in the nature of an absolute duty, is not
discharged by delegating it to a servant, but the company is liable to
any of its servants for an injury caused by the failure of such servant
to whom the duty is delegated, to exercise proper care and skill in
discharging it. 8

§ 4395. Company under a Duty of Continuing Inspection. — These,
and other decisions, emphasize the duty of a continuing inspection
which rests upon the railway company. Thus, before a railway com-
pany puts into its service a brake-chain, the duty rests upon it of
causing it to be carefully tested and inspected by some one competent
to judge of its fitness for the utmost strain that is likely to come upon
it, and if an injury ensues to one of its servants by reason of its
failure to have this inspection made, the railroad company will be
liable. 4

1 Texas Ac. R. Co." v. McAtee, 61
Tex. 695; Carpenter v. Mexican Ac.
R. Co., 39 Fed. Rep. 315; s. c. 17
Wash. L. Rep. 630; 6 Rail. & Corp.
L. J. 327; Mackey v. Batimore Ac.
R. Co., 19 D. C. 282; s. c. 18 Wash.
L. Rep. 767.

*Ante t §§ 3986, 3988.

• Henry v. Wabash Ac. R. Co., 109
Mo. 488; s. c. 19 S. W. Rep. 239.

4 Morton v. Detroit Ac. R. Co., 81
Mich. 423; s. c. 46 N. W. Rep. 111.
It follows that a railroad company
is liable to a brakeman for injuries
sustained by reason of a defective
brake-wheel, which defect was of
long standing, and would have been
discovered by the car-inspector but
for the insufficient manner in which
his examination was made, where
the superior officers of the company
were, or should have been, aware
of the "hasty and imperfect manner
of making such inspections, but
took no step to remedy it: Lake


Shore Ac. R. Co. v. Gilday, 16 Ohio
C. C. 649; s. c. 9 Ohio C. D. 27 (in
this jurisdiction brakemen and car-
inspectors are fellow servants). It
also follows that the fact that a de-
fect, for example, a crack, is not
visible from above, does not of
itself exonerate the railroad com-
pany where it would have been
plainly visible upon an inspec-
tion from* underneath, and where
such an inspection would have re-
vealed not only its existence, but
that it was not of recent origin:
Van Tassell v. New York Ac. R. Co.,
1 Misc. (N. Y.) 299; s. c. 48 N. Y.
St. Rep. 767; 20 N. Y. Supp. 708.
Where a railroad car-inspector
pronounced a brake-staff of a car
defective (whether the brake-staff
in question was not disclosed), and
the car was taken into a shop for
repairs, and, twenty-two days after-
ward, a brakeman on the car was
injured by the breaking of a staff

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§ 4396. Not liable for what Latent Defects. — The doctrine of the
preceding section implies that a railroad company is not liable for an
injury to an employ^ caused by the breaking of a brake-rod due to an
imperfect welding where the flaw was not discoverable by the usual
methods of inspection, owing to rust on the rod, — in othefr words,
where the flaw was latent. 5

§ 4397. Defect must have been the Proximate Cause of the In-
jury. — Outside of this question, it is obviously insufficient, in order
to sustain an action for injuries by reason of such a defect, to prove
the existence of the defect without more : the plaintiff must also prove
that the defect was the efficient cause of the injury. If the injury may
as well be ascribed to some other cause for which the company is not
responsible, or to inevitable accident, it will not be liable. 6 It was so
held where an injury happened in consequence of a car being blown,
in the night, from a side-track upon the main track, injuring an
employe^ whose right of action was predicated upon the fact that the
brake-shoes upon the car were very much worn down, but where he
failed to show that they were so wohi as to be ineffectual for the pur-
pose for which they were intended, — that is, to grasp the wheel ef-
fectually. 7 •

§ 4398. Company must have had Knowledge or Means of Knowl-
edge and Opportunity to Repair* — Moreover, it is not enough to prove
the existence of a defect at the very moment of the accident, but it
must also appear that the master had an opportunity of previous
knowledge, or that the facts were such that he might, by the exercise «
of the proper care and diligence, have known of the defect. 8 Hence,
although a railroad company has no right to assume that cars received
from another company are in a safe condition, but is under the duty
of inspecting them before requiring its servants to handle them/ — it
is not liable for injuries to a brakeman from the breaking of a brake-
staff upon such car through an old crack, which could only have been

at a crack, which was rusty, and a Read v. New York Ac. R. Co., 20

the appearance of which, together R. I. 209; s. c. 3 Am. Neg. Rep.

with the description of it, justified 500; 37 Atl. Rep. 947.

an inference by the jury that it had • See, for example, Louisville &c.

existed for longer than twenty-two R. Co. v. Binion, 98 Ala. 570; s. c.

days, it was held that a verdict for * 14 South. Rep. 619.

plaintiff on the ground of the com- T Smith v. New York Ac. R. Co.,

pany's neglect to "discover and re- 118 N. Y. 645; s. c. 30 N. Y. St. Rep.

pair this defect at the time when 96; 23 N. E. Rep. 990.

inspection and repairs were made • Mixter v. Imperial Coal Co., 152

on the car, would not be disturbed: Pa. St 395; s. c. 23 Pitts. L. J. (N.

Myers v. Erie R. Co., 44 App. Dlv. S.) 293; 25 Atl. Rep. 587.

(N. Y.) 11; s. c. 60 *T. Y. Supp. 422. •Ante, ft 4373.


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

detected by taking the staff off the car and striking it with a hammer,
where there was nothing in the appearance of the car indicating that
it needed repairs; 10 nor for injuries to a brakeman by the giving way
of a brake-rod in which there is an old crack, which could be discov-
ered only by taking out and lifting up the brake-rod, and which is not
apparent upon any inspection made in accordance with the universal
custom of well-conducted railroads, in the absence of anything that
would suggest, to the mind of a reasonably prudent person, a neces-
sity for so lifting or taking out the brake-rod. 11

§ 4399. Injuries Arising from the Failure of Air-Brakes to Work.

—Where a trainman was killed by the failure of air-brakes to work,
because of a leak in a steam-pipe in the smoke-box, and the engine
had not been inspected for several days prior to the accident, and
apparently an inspection would have discovered the leak, and it was
the custom on other roads to inspect engines daily before allowing
them to be used, — a verdict that the defendant was guilty of negli-
gence was justified. 12 The court reasoned that it was the failure to
supply a suitable engine— one that would furnish sufficient steam to
the air-brakes — that was the cause of the collision, and that the
decedent (the engineer) did not assume that risk, he having a right
to assume that a suitable engine had been furnished him. 18

§ 4400. Conditions of Fact under which Company held Liable. —

Such liability arises, under .principles already considered, 14 in case
of an injury to a brakeman, without fault on his part, from a defect
in a brake-rod under a car, which an ordinary inspection would have
disclosed; 18 from a defect in a chain on the brake of a car, which a
careful inspection would have made known; 16 from the fact that a
brake-beam was so constructed as to hang onfy three inches from the

10 Chicago &c. R. Co. v. Fry, 131 ances to stop the train so as* to

Ind. 319; s. c. 28 N. B. Rep. 989. prevent the derailment, should have

u Louisville Ac. R. Co. v. Camp- been submitted to the jury; so that

bell, 97 Ala. 147; 8. c. 12 South, it was error to direct a verdict for

Rep. 574. the defendant on the theory that

u Pierson v. New York Ac. R. Co., "all the evidence tended to show

53 App. Div. (N. Y.) 363; s. c. 65 that there was a sufficient number

N. Y. Supp. 1039; 99 N. Y. St. Rep. of air-brakes": Wright v. Southern

1039. R. Co. f 127 N. C. 225; s. c. 37 S. B.

" Pierson v. New York Ac. R. Co., • Rep. 221.

supra. Condition of evidence un- "Ante, § 3794, et seq.

der which the question as to "Cowan v. Chfcago 4c. R. Co., 80

whether a train, which had, on four Wis. 284; s. c. 50 N. W. Rep. 180.

of its cars, air-brakes and Janney ie Richmond Ac. R. Co. v. Burnett,

couplers, the rest of the train hav- 88 Va. 538; s. c. 16 Va. L. J. 21; 14

ing old-style couplers and brakes, S. B. Rep. 372.
was provided with proper appli-


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rails, when it should have hung at least six inches therefrom, whereby
a brakeman's foot was caught .underneath the beam while uncoupling
cars; 17 from the absenee of a key which was necessary to the safety
and efficiency of a brake-staff on a flat-car, and from the failure to
place the lower end of the brake-staff in its socket upon setting it,

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 71 of 165)