*504Dissenting Opinion.
Bonner, Associate Justice.I dissent from the conclusion reached by a majority of the court in this case.
The uncontradicted facts show that the deceased, John Kindred, was conductor of the train, and that one of his duties on this character of train was to inspect the same, and any cars found not to-be in good order were, if necessary, to be set aside and reported to the proper officer for repairs. That the defect complained of in this ease was of a very trivial character; that it was known to nearly if not to all the other employees on the train; that it could have been discovered by a very cursory examination; in fact, that it could hardly have escaped the notice of the deceased, in the performance of the very act which resulted in his death; and that it could have been easily repaired with appliances at hand.
One of the witnesses testified that he did repair it after the accident, simply by putting on a nut which he found on the train. The very great preponderance of the testimony, including telegrams from the deceased himself, shows that he took charge of the train on the morning preceding- that on which the accident happened. Had the deceased made examination, or a simple inquiry, even, of his co-employees on the train, he would in all probability have found out the defect. If this knowledge was obtained, then the company, under well settled principles of law, would not be liable under the other facts in the case; that it was not obtained, was occasioned by a want of proper diligence in the discharge of an express and important duty, and this, upon equally well settled principles, is sufficient, to exonerate the company from liability.
The Mad River & Lake Erie R. R. Co. v. Barber, 5 Ohio St., 541, is a case very much in point. There the conductor of a freight train, but which, unlike the train in this case, was not generally composed of the same cars under his control, sued for injury resulting from a defective link in a brake-chain when acting also in the capacity of brakeman. It was one of his duties as conductor to inspect his trains. Held, “ that the conductor of a train of railway •ears, being the representative of the company in the command and management of the train, and not being under the immediate control and direction of a superior or supervisory agent, is held to ordinary and reasonable ea/re and diligence, not only in the management of the train, but also in the due inspection of the cars, machinery and apparatus of the train, as to their sufficiency and safety; and if he receives an injury while neglecting that care and diligence required of him in the management of his train, or by means of *505any defect or insufficiency in the cars, machinery or apparatus, with a knowledge of which he was running the train, or which could have been known to him by the exercise of that care and diligence required of him in the performance of his duty; or, in other words, if his neglect in either of these particulars contributed as a proximate cause to the injury, he can have no right of action against the company for damages.”
In my opinion, the inspection of the cars was the first duty to which the deceased should have devoted his attention. Public policy, the preservation of his own life and that of his co-employees, to say nothing of the preservation of the property of the company, required of him great diligence in the performance of this duty, and the courts should not relax the diligence of such officers by giving compensation for injuries received by their own neglect.