dissenting.
I am unable to agree with the majority of the court in the conclusions reached in this case. I think that the excessive verdict of $12,500 shows that the jury must have been actuated by passion and prejudice, and the remittitur of $6,500, entered upon the demand of this court, under penalty of reversal unless such remittitur were entered, does not, in my opinion, purge the verdict of its original vice. Even in a case where the plaintiff establishes a good cause of action, and shows that he is clearly entitled to recover, I think the damages should be assessed by a fair-minded jury, and not by this court.
But in this case, after a very careful examination of the evidence, I am of the opinion that appellee has failed to establish a right to recover under either count of his declaration.
The first count charges negligence in permitting track number three to be obstructed by the draw-bar which caused appellee’s injury. But the evidence clearly shows that on the day of the injury the yards and track where it occurred were thoroughly cleaned of all obstructions by the section foreman and his gang of hands, the work being finished between eleven and twelve o’clock in the forenoon of that day. And there is evidence that the section foreman again went over the yard and inspected it in the afternoon of the same day.
So far as the cleaning of the yards and track, and the removing of obstructions therefrom is concerned, I think there was no want of reasonable or ordinary care on the part of the appellant or its employes. The evidence does not fix the precise time when Draper, the yard master, switched the cars onto track number three, but it could not have been, at furthest, more than an hour or two before sunset. It appears from the evidence that car No. 8866 from which the draw-bar, which caused appellee’s injury, was broken, was carefully inspected by appellant’s servants on the evening of November 18th, and again on the morning of November 14th, the day of the injury, and this inspection showed, that so far as the draw-bars were concerned, the car was in good order. It can not therefore be reasonably said, that as to this car there was any want of due care in the matter of inspection. Nevertheless, the next morning one of the draw-bars was found broken, and no doubt it was the same one which caused appellee’s injury.
How it came to be broken off does not clearly appear. The yard master, Draper, testifies that when the cars, (including No. 8866) were set in on track number three, he did not discover any jamming; “ that they hit a little hard, but nothing more than wThat often occurs. That it was very common.” This testimony appears to be uncontradieted, and, if true, nothing happened when the cars were set in, which, in the exercise of reasonable care, required an examination to see if anything was broken. I fail to find in the record any evidence which shows that the breaking of draw-bars, under like circumstances, was a matter of such frequent occurrence as to require an immediate inspection to ascertain whether any were broken or not. On the contrary, it seems to me it was an unusual and unlooked-for occurrence—a mere accident, which, in the exercise of reasonable care, appellant was not bound to look out for or anticipate.
If the breaking of draw-bars from cars under such circumstances was a matter of frequent occurrence, then it would seem that the hazard of encountering such an obstacle was one of the risks ordinarily incident to the employment of appellee, and for an injury arising therefrom, appellant would not be liable. Under all the circumstances shown by the evidence, I think the appellant was not guilty of negligence in failing to have the yard and track in question cleaned and free from obstructions, nor in the inspection of the car from which the draw-bar was broken, nor in failing to discover the broken draw-bar upon the track. It was not then long enough before dark to charge appellant with constructive notice, and there is no proof of actual notice. But if it was the duty of any one, under the circumstances, and at the time of day or night, to discover the broken draw-bar, it was that of Draper, the yard master, acting as switchman, when he set the cars onto the side track, and if, in that respect, he was negligent, I think it was the negligence of a fellow-servant with appellee, engaged in the same line of employment. He may have been a superior servant, or vice-principal in some respects, but certainly not as to this particular act. I think that it does not necessarily follow, that because one employe occupies a superior position, even though it be to the extent of having power to hire and discharge, that therefore in no event can they be fellow-servants. A section foreman may have the power to employ, direct and discharge the members of his gang, but if, while working with them, one is injured by his carelessness, the negligence might not be that of the employer, but that of a fellow-servant. For instance, if the foreman and one of his men were carrying a bar of railroad iron, and the foreman should carelessly drop it so that the man was injured, or if, in driving a spike, the foreman should carelessly strike one of the men with his hammer and thereby do him injury, I apprehend it would be the negligence of a fellow-servant and not that of the common master. So in the case at bar. While Draper employed and directed appellee in his work, yet they each acted as foreman of a switching crew, and each ran the risk of injury from the negligence of the other; their relations in that respect in my opinion made them fellow-servants within the rule. To demand greater care than seems to have been exercised in this case would require the railroad companies to constantly patrol their tracks, to see that there were no obstructions thereon, and every time a car was switched upon a siding, there must be a careful inspection and examination, to see that nothing had been broken and dropped upon the track. It seems to me this would be requiring such extraordinary care as to be unreasonable and burdensome in the extreme.
As to the charge of negligence in the second count of the declaration, concerning the alleged improper construction of the stub pilot and foot-board of the engine upon which appellee was riding at the timq, he • was injured, I am of the opinion the evidence does not sustain the charge. On the contrary, they appear to have been properly constructed for the purpose for which they were designed. They were not intended to run over obstructions the size of the broken draw-bar which caused the injury, and its presence upon the track was a mere unusual and unlooked-for accident.
In that particular case, no doubt it would have been better had the foot board been higher, but in ordinary cases it was high enough to be reasonably safe.
But even if it be conceded that the foot-board was too low, yet the appellee had equal opportunity with the appellant of knowing the fact. He was no novice in the use of such machinery, and he testifies to seeing the engine, equipped as it was at the time of his injury, as early as the latter part of October, 1893, when it was at the round house; and he says he was there, on one occasion, looking at it for ten or fifteen minutes. The evidence shows that for a number of nights before the injury, some eight or ten, he worked on this particular engine without complaint. If there were any defects in construction they were obvious and patent, and could be as well seen and observed by him as by any other servants of the company, and he must therefore be presumed to know of such defects if any existed, and to have been willing to assume the risks, in absence of any complaint on his part and a promise of repair or change on the part of appellant. The law is well settled that an employe can not recover for any injury suffered in the course of the business about which he is employed, from defective machinery, after he has knowledge of the defects and continues to work without promise or representations that the defect will be remedied. In such a case it will be presumed he voluntarily assumed the risk, and waived whatever obligations rested upon the employer to furnish complete and perfect appliances. I do not deem it necessary to cite authorities in support of this proposition. They are numerous in this State. This court has fully recognized the doctrine in other cases.
I think the court below erred in not sustaining the motion to direct a verdict for defendant, and in my opinion the judgment should be reversed.