Opinion op toe Cottkt,
Sample, J.The appellee’s counsel does not insist that the appellant was negligent in furnishing cars with deadwoods, or with Ames’ couplers. Nor is such negligence based on furnishing a car with a broken lever or chain; but the counsel say: “Plaintiff claims that the looseness of the draw bars, allowing it to recede soonér, and a greater distance than it could or would, had it been in repair, allowing the bull tongue to shy the pin in an unusual and unexpected manner, caught his fingers when he -was not expecting such, occurrence.”
The injury can not be attributed to the receding of the draw bar of either car a greater distance than usual, for the reason that there is no evidence to sustain that theory. All of the evidence shows that the draw bars were constructed so that they would recede and permit the force of the concussion of the cars, as they came together, to be sustained by the deadwoods. That is the only purpose of the deadwoods. They are intended to receive the force of the concussion, and thus relieve and preserve the draw bars from being broken. In such case, the draw bars of cars having deadwoods can not recede, or at least in this case the evidence does not show that they did recede further than was necessary for the deadwoods to receive the force of the shock of the cars as they came together.
The evidence is not that the draw heads receded too far, but that the draw head of the right or still car pulled out too far, as shown by the evidence of the plaintiff above quoted.
He testified as follows: “ This draw head to my right (meaning the draw head of the still car) certainly must have been out of order, for there was a great deal of loose motion there. It pulled out at least nine or ten inches. Most generally it pulls out three or four inches.” It will be observed that he does not pretend to state how far the draw bars receded, or that either of them receded farther than usual. How the pulling out of the draw bars of the cars, or either of them, could have caused or contributed to this injury, we are unable to understand.
The pulling out of the draw head of the right car occurred on the reaction, after the cars had come together. Before that time, according to the plaintiff’s testimony, his fingers had been caught as heretofore described. Even if the draw bar had receded farther than usual, we are at a loss to understand how that could have caused appellee’s injury. Why should such receding cause the pin to be forced or canted over, so as to catch the appellee’s hands ? As a cause, the receding would naturally have the opposite effect.
The bull tongue was in the left, or moving car; the pin, of which appellee had hold, was in the hole of the draw head of the right or still car, with the lower end projecting into the aperture of that draw head. The bull tongue being fastened, was stiff—therein differing from a link— and when it struck the lower end of the pin, the canting or shying would naturally occur, and the receding of the draw head could not, as a cause, have operated to produce it.
It was incumbent on the appellee to prove, not only a defect in the coupler, but the defect that caused the injury. Merely proving that there was a defect, is not sufficient. Hot only so, but under the averments of the declaration, the proof must also show that the defect causing the injury was known to the defendant, or by the exercise of reasonable care, it could have been known. There is an absence of proof as to when the defect, if it can be so called, in the spring or following plate, mentioned by the appellee, occurred, or that appellant knew, or could have known by the exercise of reasonable diligence, of such defect, even, if it is assumed such defect was the cause of the injury.
The fourth and sixth instructions given for the appellee, are erroneous. As heretofore stated, the declaration charges negligence in “ not keeping the cars and machinery thereof in good repair, but on the contrary, the couplers were out of repair, and not sufficient for the purpose used.”
The fourth instruction is as follows:
“ The jury are instructed that a master or employer is bound to use reasonable care, skill and judgment, to furnish suitable machinery and implements properly constructed, and ordinarily skillful and trustworthy agents and workmen, and if the employer does not use such care, skill and judgment, and injury results therefrom to an employe, the employer will be liable for such injury unless the party injured' knew of such defect long enough to have made complaint and did not make such complaint.”
The cause of action is want of repair and notice of such condition. This instruction makes liability depend on the furnishing of machinery properly constructed, 'which was not made an issue in the case either by the pleadings or the evidence.
Notice is not necessary in case of an improper construction of machinery, but is, in case of defect by use or for want of repair.
The sixth instruction is as follows:
“The court instructs the jury in this case, that if .you' believe from the preponderance of the evidence that the plaintiff, while in the exercise of reasonable care himself, ■was injured while attempting to make a coupling, and that said injury was caused by reason of the couplers, the machinery connected therewith being out of repair, then the jury should find for the plaintiff.”
This instruction also ignores the law of notice as above laid down, and makes the liability depend solely on there being a defect at the time of the injury, and such defect being the cause thereof, without reference to when the defect occurred, or that by the exercise of reasonable care it would have been discovered by appellant before the injury. E. St. L. P. & P. Co. v. Hightower, 92 Ill. at p. 141.
It is also subject to the criticism that apparently it assumes that the machinery connected with the couplers was out of repair.
We do not deem it necessary to consider the other points made by appellant’s counsel.
In view of our holding that the appellee did not make a case in the court below, entitling him to a verdict or judgment, we reverse, without remanding this cause, and make a finding of facts a part of our final order.
Euroirro or Pacts.
That John H. Dixon—the appellee—-was injured while in the employ of the appellant and in the line of duty, in attempting to make a coupling of cars that were supplied with the Ames coupler—commonly called bull tongue coupler—both couplers on the cars being at the time defective, which was known to appellee, but for which defect so known there is no claim for a recovery in this case, the recovery being based on the loose motion of one of the draw bars, which in that respect was claimed to he defective but Avhich Ave find did not cause or contribute to the injury, even if defective in the respect claimed. We find there is no proof of a defect in the couplers of the cars, that caused the injury.
The clerk Avill enter this in the final order.