As I understand it, the sole question presented by this appeal is whether or not the defect in the defendant’s car, which presumably caused the derailment and the injury to the plaintiff, was of such a character that by the exercise of reasonable care on the part of the defendant in inspecting such car it ought to *18have been discovered. It is undisputed that the car left the track at a sharp curve on the defendant’s road; that when it left the track it was going with such speed and force as to traverse the distance of seventy-five or eighty feet along the pavement and across the street until it struck a tree with such force that the tree was forced through the vestibule to the forward truck of the car, and in such collision the plaintiff sustained the injuries for which he seeks to recover in this action.
It appears that the truck under the car in question was purchased by the defendant from a reliable and representative firm of car builders. Apparently it was shipped to the defendant in parts and was assembled, put together by the defendant and placed under car No. 400. This was all completed about twenty days prior to the accident. A test of the car thus equipped was then made by the defendant as to the efficiency and condition of the truck for the purposes for which it was intended. The test so made, it is claimed, was inadequate and and not such as would disclose any defects in such truck if any existed. After such test had been made the car was put in commission to run over the different lines of the defendant. In the operation of such car it was found that occasionally when entering a switch it would leave the track. It is shown that in at least three of the five occasions that it left the switch prior to the accident it was because of the defect in the switches rather than because of the defect in the. truck. In the other two instances the cause of its leaving the switch is not disclosed. But however that may be, there is absolutely no evidence that the plaintiff or any other person connected with the operation of this car informed the defendant or any of its officers that it did not operate properly over the switches or any other part or parts of defendant’s tracks prior to the accident. So that the evidence is practically uncontradicted that so far as the defendant is concerned none of its officers or agents, or even its employees except the plaintiff and like employees, knew that the car in question was not capable of being operated in an entirely safe manner. Of course, it is shown as above stated, that upon five occasions this car left the track at switch points, but that in no instance had such fact been called to the attention of the defendant, •. .' 1 . . .
*19At the time in question the car, so far as appears, for the first time left the track at a point other than at the switch, viz., upon a curve, and the injury of which the plaintiff complains resulted. The evidence tends to show that because of such accident the car was badly wrecked and that its collision with the tree, to which we have referred, would be an ample cause for its condition discovered after such accident. After the accident the car was dismantled and an inspection was made of it and it was discovered that the frame of the truck was bent and twisted one-half inch out of true, and it is apparently conceded that if such condition existed before the accident it would have been sufficient to have thrown the car off the track at the time in question and have caused the accident which is the subject of this litigation. But, as it seems to me, it is quite as reasonable to infer from the evidence that such condition of the truck was due to the collision. This would appear to be demonstrated almost beyond a doubt from the fact that when an attempt was first made to operate the car after being repaired following the collision, it refused to take a switch five times out of seven, when the switch was concededly in proper order, whereas before the accident, running almost constantly for twenty days/ it refused to take the switch only five times, and it is shown that upon at least three of these occasions the fault was due to the switch itself.
In my view of this case it was purely speculation for the jury to say that the derailment in question was caused by the defect in the alignment of the truck such as was discovered when the car was afterwards dismantled; but further, it will be remembered, and there is no contradiction in the evidence in this respect, that prior to the accident the car in question never left the track except at switchpoints, and that at least three of those derailments are explained by the fact that the switch over which it passed was defective; and the cause of the derailment in the other two cases at switchpoints is not in any manner disclosed by the evidence.
So that we have the situation of a truck, or the chief parts of it, obtained by the defendant from a standard and reliable manufacturer, tested, perhaps inadequately, before being put *20into commission upon the defendant’s road, but after such tests as were made had been made and it was put into regular commission, so far as the defendant Imew or had reason to believe, it performed every function which could be required of it. True, upon five occasions during the twenty days it was in commission before this accident it failed to keep the track at switch-points, but such failure was not reported to the defendant, and the plaintiff in this case was operating the car upon at least three of those occasions and did not report the same to the defendant, go that the question is presented, was the defendant under such circumstances negligent because it did not discover, prior to the accident, the defect in the car truck which concededly existed after the accident, and which, if it existed prior to the accident, would have been adequate to account for such accident.
I conclude that there was no evidence which would justify the jury in finding, as they must necessarily have found, under the charge of the court, that the defendant was guilty of negligence in failing to have discovered, prior to the accident, the defect in the truck, and that such defect caused the accident which is the subject of this litigation. I think the question of plaintiff’s contributory negligence was for the jury, and that under all the circumstances the defendant has no cause for complaint as to its determination in that regard. But I am of the opinion that the jury was not warranted in finding that the defective condition found to exist after the accident did exist prior to the accident, and that even if it did, the defendant was not shown guilty of any negligence in failing to make such an inspection as would have disclosed to it the defect, because no improper performance of the car had been reported to it.
The judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
Kruse, J., concurred.
Judgment and order affirmed, with costs