TIERNEY v. MINNEAPOLIS & ST. LOUIS RAILWAY CO. ET AL. It is incumbent upon a railway corporation, in the discharge of its duty as master, not only to provide machinery and instrumentalities for its employees which are suitable and safe, but also to use reasonable diligence to keep them so. Necessarily incident to these obligations is the duty of frequent inspection, and the corporation, acting by its servants in the discharge of such duty, is liable for their negligence.

By a regulation governing the employees in the transfer-yard of a railway company, car inspectors were required to inspect incoming cars immediately upon their arrival, and if out of repair to mark them "in bad order," indicating that they were to be sent to the "repair track:" Held, that negligence on the part of the inspectors in failing to properly discharge this duty, by reason of which plaintiff was injured while attempting to couple a damaged car without notice of its condition, and without fault on his part, might be imputed to the company.

It will not be presumed under such circumstances that the plaintiff assumed the risk of such negligent inspection, unless it appear that he undertook to handle cars in the course of his employment without reference to inspection.

MITCHELL, J., dissents, on the ground that the car inspector was a fellow servant with the employees engaged in making up the train.

A witness who is not an expert may testify to facts within his knowledge and observation in reference to the health and physical condition of an injured person.

APPEAL from an order of the District Court, Freeborn county. denying motion for new trial.

Lovely & Morgan, for respondent.

J. D. Springer and Whytock & Todd, for appellants.

The opinion of the court was delivered by

VANDERBURGH, J.-It is admitted that the defendants jointly owned, maintained and occupied a yard in common at Albert Lea, where trains were made up to be sent over their respective lines. The respondent had charge of the making up of night trains in the yard, and was injured in the course of his employment, while

coupling cars, at about 3 o'clock in the morning of November 24th 1882. A freight train had previously arrived from Minneapolis over the Minneapolis & St. Louis road, including, with others, a box car loaded with flour at that place and bound east. On its arrival, it became plaintiff's duty, according to the usual course of business, to obtain a list of the cars and their destination, so that he might proceed to make the necessary transfers in making up the outgoing trains. It was the duty of the car inspectors, two of whom were employed for night service, to inspect all cars in trains on their arrival. The plaintiff had been in the employ of defendants a little more than two weeks, and must have been familiar with the manner in which the business was carried on in the yard. On the night in question, about half an hour after the arrival of the train mentioned, the plaintiff, who had been switching and distributing cars, brought an unloaded flat car from the wood track to the main track, upon which the box car we have referred to still stood, and undertook to couple them. His evidence tends to show that as he went to make the coupling, and while the cars were coming together in the usual way, the draw-bar of the flat car struck and overrode the draw-bar of the box car, which appeared to be loose and insecurely supported, and dropped down when struck by the approaching car, thus permitting the two cars to come together and intercept the plaintiff, and resulting in his being run over upon the track, and in causing the loss of a leg, which was necessarily amputated above the knee.

While it may be conceded, for the purposes of this case, that from the circumstances and nature of plaintiff's employment, in which cars from many roads were brought together with coupling attachments of different heights and patterns, he would assume the ordinary risks of the service from such causes, we think, upon the evidence, the question was fairly for the jury whether the accident occurred from such causes, or from the fact that the draw-bar of the box car was insecurely supported and in an unsafe condition, from neglect to repair the same. Upon this issue the evidence in plaintiff's behalf, among other things, tended to show that the strap or carrying-iron which supported the draw-bar was worn, weak, and loose, and that some of the bolts which were intended to keep this iron strap in place were loose or broken, that it had been out of repair for a considerable time, and the defects were such as could readily be discovered by proper inspection.

The evidence of the defective condition of the car, which appears to have been previously in the possession of one of the defendants, the Minneapolis & St. Louis Company at Minneapolis, and during its transit to Albert Lea, a distance of 108 miles, was received and submitted to the jury without any objection or suggestion that the liability did not attach equally to both defendants for any negligence in respect to this car prior to its arrival at Albert Lea. This point is now suggested for the first time; but we think, under the circumstances, the attention of the court should have been called to this matter when the evidence was received, or when the jury were instructed. As the case stands, since we think there was evidence for the jury tending to show a joint liability. for negligence in the yard at Albert Lea, it is too late to raise the question in this court as to the competency or sufficiency of the evidence of previous negligence to charge the defendants.

Evidence was received, under the defendant's exception, showing a regulation of defendants in relation to the inspection of cars, under which it became the duty of the car inspectors, if any were found defective or in need of repairs, to mark them so as to indicate that they were in bad order, and hence not to be sent out, but to be sent to the repair track. We think this evidence was properly received upon the question of defendants' liability; for if the car in question was defective and unsafe, which, as we have seen, was for the jury, then such regulation was binding upon the inspectors as representing the defendants for the protection of employees in the yard, unless it should appear that it was one of the risks of the service assumed by them to handle cars there without regard to inspection, or their condition, or any notice thereof. It may have been a question for the jury, under proper instructions, to determine whether or not, from the nature of the service in which the plaintiff was employed, he was required to proceed to switch cars and make up trains without regard to inspection, and without waiting for it; but instructions of this character were not asked or given, and the evidence does not show that such risk necessarily attached to plaintiff's business, and was hence assumed by him.

The position taken by defendants' counsel at the trial appears to have been that the plaintiff did not give the inspectors the necessary time to complete their work; and the case was submitted to the jury under instructions given, at defendants' request, that "if

he did not do so," or "if he did not know or have reason to believe that all the cars in said train were inspected before he caused them to be moved, he cannot recover." This question was determined by the jury in plaintiff's favor upon the evidence.

As before remarked, it was the duty of the inspectors to examine cars immediately upon their arrival, and the evidence tends to prove that it was their practice to so inspect them upon the track before their removal. The inspection of the train was, in fact, so made on the night in question. There is some conflict in the testimony as to the length of time it would take to properly inspect such a train of cars, and it does not clearly appear how much time had elapsed before the injury; the plaintiff's recollection being that it was from twenty-five to forty minutes. But it appears that the inspectors had, in fact, completed their work before the accident. The negligence of the inspectors was therefore proper to be considered upon the question of the defendants' liability. If it is the duty of the corporation to exercise reasonable diligence to supply suitable and safe instrumentalities for the use of its servants to work with, it is also its duty to use like diligence to keep the same in proper repair. This necessarily involves inspection and examination as incident to the obligation to repair, and, as a corporation must necessarily act through agents, the negligence of its employees in the discharge of such duty is attributable to the corporation: Solomon Rd. Co. v. Jones, 30 Kans. 601; Railroad Co. v. Holt, 29 Id. 149; Brann v. Rd. Co., 53 Iowa 595; Porter v. Rd. Co., 71 Mo. 77, 78; Railroad Co. v. Jackson, 55 Ill. 492; Condon v. Missouri Pacific Rd. Co., 78 Mo. 567; Crispin v. Babbitt, 81 N. Y. 521; Fuller v. Jewett, 80 Id. 52, 53; Kirkpatrick v. Rd. Co., 79 Id. 240; Slater v. Jewett, 85 Id. 70, 71; Durkin v. Sharp, 88 Id. 227; Murphy v. Rd. Co., Id. 152; Dana v. Rd. Co., 92 Id. 642; Vosburgh v. Rd. Co., 94 Id. 380; Kain v. Smith, 25 Hun 149; Wedgwood v. Rd. Co., 41 Wis. 483; s. c. 44 Id. 48, 49; Smith v. Rd. Co., 42 Id. 526; Richardson v. Great Eastern Rd. Co., L. R., 1 C. P. Div. 342.

In Fuller v. Jewett, supra, it is said by the court: "The duty of maintaining machinery in repair for the safety of employees is the same in kind as the duty of furnishing a safe and proper machine in the first instance;" and "in respect to such act or duty, the servant who undertakes or omits to perform it is the representative of the master, and not a mere co-servant with the one who

sustains the injury." This corresponds to the language of the same court (CHURCH, C. J.) in Flike v. Rd. Co., 53 N. Y. 553, and (FOLGER, C. J.) in Slater v. Jewett, 85 Id. 70, 71. Substantially the same doctrine is adopted by this court in Drymala v. Thompson, 26 Minn. 41; and we think that case must control the disposition of the question under consideration. In some states the courts hold that this rule is not applicable to subordinate employees, as in the case of ordinary car inspectors at the transfer yards, but that the latter are to be deemed fellow servants of other employees injured through their negligence: Railroad Cos. v. Webb, 12 Ohio St. 494; Little Miami Rd. Co. v. Fitzpatrick, 41 Id.; Smoot v. Rd. Co., 67 Ala. 13. The rule adopted in these and other cases is followed in Smith v. Rd. Co., 46 Mich. 258; Mackin v. Rd. Co., 135 Mass. 206, as applied to foreign cars in transit, which a railway company is obliged by law to draw over its line. In the case last cited the court say by way of explanation: "However it may be as to other cars, the inspectors must be regarded as engaged in a common employment as to such cars while in transit, and until ready to be inspected for a new service." One reason given is that the company was not obliged to repair such cars. That question we need not consider in this case. This car was loaded at the terminus of the line, and by defendants' own regulations was required. to be inspected, and, if damaged, to be properly marked to indicate that fact, at its general yard at Albert Lea, by the agents of the defendants appointed for such purpose.

It is difficult to lay down a general rule which will be applicable in practice, and define accurately the limits of the master's liability in this class of cases. But if the special duty and responsibility belong to the car inspector to examine and determine whether a car is unfit for service, and shall be so marked and sent to the repair track or shop, it is difficult to discover any distinction in kind between his duty and that of the mechanics who make the repairs. It will also be borne in mind that the measure of liability on the part of the company is reasonable care, which must be determined by the circumstances in each case. Experience in the competent and practical management of railroads will naturally determine the nature and frequency of inspections which ordinary care would require should be made between the intervals of the more minute examinations at the general repair shops. But the general examinations which experience has shown practicable and necessary to

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