concurring, says:
“I do not think the duty of inspection, when such inspection is required by the circumstances of the case, can be delegated by the master in such manner as to avoid responsibility, and I concur in reversing the judgment.”Campbell, J.,
who wrote in the Smith case, says:
“I agree in reversing the judgment, but I do not think it proper to throw doubt on our previous decisions which have dealt with the questions in this cause.”
The Morton case, by a very full and able opinion by' Cahill, J., reaffirms the doctrine of Van Dusen v. Letellier.
In Irvine v. Railroad Co. we held that it is as much the duty of the company to see that cars are so loaded that brakemen will have reasonably safe access to the brakes, and an opportunity' for the discharge of their duties, as it is to see that proper appliances are provided. In the discussion of that question, however, JE am satisfied that the statement made in that opinion, that if the cars were inspected, or if the company provided the means for /their inspection, by a fellow-servant, and the inspector neglected .his (duty, then there could be no recovery, is not supported by' the later decisions of our own Court, nor by the weight of authority . elsewhere. Shear. & R. Neg. §§ 194, 204; Railroad Co. v. Fox, 31 Kan. 586; Ford v. Railroad Co., 110 Mass. 240; Hough v. Railway Co., 100 U. S. 213; Railroad Co. v. Herbert, 116 Id. 642; King v. Railroad Co., 14 Fed. Rep. 277; Lewis v. Seifert, 116 Penn. St. 648; Railroad Co. v. De Armond, 86 Tenn. 73; Fay v. Railway Co., 30 Minn. 231; Gutridge v. Railway Co., 94 Mo. 468; Fuller v. Jewett, 80 N. Y. 46; Gottlieb v. Railroad Co., 100 Id. 466; Railway Co. v. Kernan, 78 Tex. 294; Hulehan v. Railroad Co., 68 Wis. 520; 7 Amer. & Eng. Enc. Law, 825, and note. The doctrine *345of these cases is that when it is the dirty, of the master to furnish sound apparatus, machinery, etc., and defective machinery causes an injury to the servant, the rule which exempts the master from liability for injury to servants through the negligence of a fellow-servant does not apply.
In Hulehan v. Railroad Co., supra, it was held that, where a railroad company permitted its tracks to be incumbered with sticks and blocks of wood at places where plaintiff was called upon to perform his duties in coupling cars, by reason of which he was injured, the negligence of permitting the roadway to be obstructed was that of the company.
At best, the duties of brakemen are dangerous, and it is the plain duty of their employers to provide against increased peril. There is no reason why one rule should apply to the case of a defective brake-chain, and that another should govern a case where a. car has been so improperly loaded as to prevent the use of the brake without great hazard. In the recent case of Railway Co. v. Shean (Tex. Sup.), 18 S. W. Rep. 151, the .cars were improperly loaded, but the decision was put upon the ground that the plaintiff knew that the car was loaded in such a manner as to render the attempt to couple it extremely hazardous. In the present case plaintiff had no such knowledge.
It is insisted, however, that this lumber car was one received from another company; but the obligation to receive cars from other roads does not require the reception of defective cars, or cars so loaded as to render their transportation hazardous to employés. The duty is not one to be discharged without reward. Tiie service rendered is not gratuitous. As was said by Campbell, J., in Smith v. Potter:
“This [duty imposed by statute] does not require the transfer of cars unfit for passage. * * * There is no difference in the nature of the danger, or in the quality of the inspector’s employment, between the case of shifting cars belonging to other roads and cars belonging to the same road. Defects in both lead to the same results, and the methods of examining both are identical.”
In Fay v. Railway Co., Gutridge v. Railway Co., Gottlieb v. Railroad Co., and Railway Co. v. Kernan, supra, the cars were freight cars, but the cases hold, and I think correctly, that that fact was immaterial.
It follows that the judgment must be reversed, and a new trial had, with costs of this Court to plaintiff.
Morse, C. J., and Long, J., concurred with McGrath, J.