R. Co. v. Miller, 41 Tex. 273; Price v. Navigation Co., 46 Tex. 535; Robinson v. Ry. Co., id. 540; Pierce on Railroads, p. 359, note 7.

The company is required, by the plainest dictates of reason and rules of law, to furnish to its servants operating trains good, sound and suitable machinery, apparatus and material necessary in the conducting of that business; and generally, the company is liable to its servants for injuries resulting from the use of defective machinery, apparatus or material in the discharge of their duty, provided the company knew, or could have known by reasonable care, that the same was so defective or unfit for the purposes for which it was furnished. This rule is subject to a qualification founded in reason, and amply sustained by authority, and that is, if the servant, after having knowledge of the defective machinery, apparatus or material, remains in the service and attempts to use the same, and is thereby injured, he cannot recover of the company for such injury. Pierce on Railroads, p. 379,

note 4.

The appellee in his petition claims that the injury in this case resulted directly from his attempting to use, in the discharge of his duty, an imperfect and unfit coupling link that had been furnished by the company for that purpose; that he did not know of such defect until he was injured, but that the company did know of it, at and before the time of the injury.

This is the case made by the petitioner; but the testimony adduced to sustain the same makes a case quite different in many of its features. The evidence establishes, beyond any doubt, that the appellee was injured in attempting to couple cars; that, in making the effort to couple the same, he was using the end link of a switch chain, and not a coupling link; that the link he was trying to use was entirely unfit for that purpose; that it was about six inches long and bent, whereas the coupling links were straight and about ten inches long. There is no evidence in the record tending to show that the company had furnished or intended that it should be used as a coupling link, nor is there anything in the record showing but that the same was well adapted and entirely suited for the purpose for which it had been furnished by the company, to wit, the end link in a switch chain. The evidence clearly shows that, in the discharge of his duty as brakeman, he undertook, upon his own responsibility and at his own peril, to use the end of a switch chain instead of a coupling link, an instrument wholly foreign in its uses and purposes to that of a link for coupling freight cars. Appellee testifies that if he had been using a coupling link he could have made the coupling without getting injured. In any view of the testimony, it is clear and beyond dispute that appellee's injuries resulted from his attempt to substitute the end of a switch chain for a coupling link, and

use the same in a way and for a purpose entirely different from that for which it was furnished or intended to be used.

According to his own testimony, appellee showed a reckless disregard of his own personal safety in attempting to couple cars with the link he describes.

We are of the opinion that the judgment is not sustained by the evidence, and that the court erred in overruling appellant's motion for a new trial, and that the proper disposition of this appeal would be to reverse the judgment and remand the case. Reversed and remanded.

See note to Slater v. Jewett, 5 Am. and Eng. R. R. Cas. 525.

KING

v.

OHIO, ETC., R. R. Co.

(U. S. C. C., Dist. of Indiana.)

A car inspector is not the fellow-servant in common employment of a brakeman in any such sense as to relieve the railroad company from liability for injury to the latter consequent upon the defective condition of a car which the former had failed to note.

A brakeman in coupling cars has a right to assume that they are in good and safe condition, and it is not contributory negligence for him to run in between two cars without stopping to examine and see whether the drawheads are properly adjusted or not.

JOHN A. HENRY, for petitioner; Harrison, Hines & Miller, for receiver.

GRESHAM, J.-The petitioner, Henry F. Braning, by this proceeding seeks to recover damages for injuries sustained in coupling cars at North Vernon, Ind., while in the service of the receiver.

The petitioner and others on the 5th day of January, 1880, were making up a freight train at this point to go south over the Louisville branch of the Ohio, etc., R. R. Co. He was assisting as brakeman in switching and coupling, and finally ran along with the train as it backed up to a coal car, and hurriedly stepped in between this car and the rear car of the train, when they were three or four feet apart, to make the coupling. Instead of meeting or bumping together, as they should have done, the draw-bars passed each other and allowed the ends of the cars to come together, or so near together as to seriously injure the petitioner. The strip which supported the draw-bar of the coal car and held it up had become un

bolted at one end, the nut being missing, and the draw-bar was thus allowed to drop far enough below its proper position to miss the draw-bar of the forward car and pass under it. There was some

evidence tending to show that the "dead-wood," which is a block bolted on the end of the ear, above the draw-bar, to assist in keeping the cars from coming together, was imperfect, it being worn away as much as a few inches. If the coal car had not been out of repair the draw-bars would have met or bumped instead of passing, and the coupling would have been made without injury to the petitioner.

This coal car, which belonged to the company, and had been in use for nine years, was, it appears from the evidence, brought from Washington, Ind., loaded with coal the evening or the night before the accident. The car inspector at Washington testified that he had inspected all cars on leaving that place the day before the accident and none of them, so far as he observed, were out of repair. And three of the four car inspectors at Seymour testified that they had inspected all trains passing there from the west the same day and the night of that day, two performing the labor together during the day, and the third alone at night, and the cars all seemed to be in proper condition.

There are no car inspectors at North Vernon at this time, but one appears to have been appointed for that place some months later. This appointment was made, however, it is claimed, for the receiver, on account of the great increase of business at this point after the accident.

There is no evidence that the coal car, or any other cars, were inspected at North Vernon. The petitioner testified that he did not notice the condition of the coal car until he ran in and took hold of the link to make the coupling, and that he did not discover his peril until it was too late to escape. He was caught between the ends of the cars when they came together and seriously injured in his right side and chest. The physician who was called in after the accident, and who treated the petitioner for some time afterwards, testified that he found a depression of at least two inches on the right side, the ribs from the fifth down, on that side, being forced in that far; that he did not succeed by manipulation and bandaging in entirely removing this depression; that the right lung and the membrane surrounding it were seriously injured; that some months after the accident he thought, on examination, that he found an accumulation of pus in the lower part of the right lung, corresponding to the place of injury, and tubercular deposits in the top of this lung; that the petitioner was not able to work, and the chances were that he never would be. During the year prior to the accident the petitioner had an attack of lung fever, from which he seemed to recover, and again went to work. He was a man of average health and strength, and there was no evi

dence that he inherited any tendency to lung disease. Nine or ten weeks after receiving the injury he undertook to resume work on the road; but owing to his feeble condition he was compelled to rest at frequent intervals, sometimes for a week or longer. At the time his testimony was taken, which was two years or more after the accident, he was unable to work. It is not denied that his injuries were serious, very painful and, perhaps, permanent. It is urged for the receiver that the testimony failed to show want of proper care on his part or that of his managing agents; that if any carelessness was shown it was the carelessness of the car inspectors, who should have discovered the damaged condition of the car before the accident and ordered it into the shops for repairs; that the petitioner was compensated by his wages for his services, and all risks incident to his employment, including the carelessness of the car inspectors, who were his fellow-servants; and, finally, that the petitioner, by his own negligence, contributed to his injury by running in between the cars to make the coupling without using his eyes and discovering in time the dangerous condition of the coal

car.

It is 100 miles from Washington, where the coal car was loaded, to North Vernon, and from Seymour to the same place the distance is only fifteen miles.

It is not denied that the coal car was out of repair and unfit for use at the time of the accident, and in view of its then condition, it is probable that the defects already described existed when the car passed Seymour, and even when it was loaded at Washington. These defects, when the car was detached, were plainly visible on examination, but when it was coupled up in a train and the drawbar thus somewhat held in position they were more liable to escape observation. But whatever the condition of this car may have been at Washington and Seymour, trains were made up at North Vernon, where the defective car was switched off on a side track to go south over the Louisville branch, and if proper care had been used at this point its damaged condition would have been discovered, and it would have been condemned for repairs instead of having been ordered into the train as it was.

It is not the law in the Federal courts, nor is it believed to be the law in all of the State courts, that the master is relieved from responsibility in all cases in which a servant is injured by the negligence of a fellow-servant. The master's immunity is limited to cases where the servants are engaged in the same common employment; that is to say, in the same department of duty. Such immunity does not extend to cases where the servants are engaged in departments essentially foreign to each other. A servant cannot be held to have contemplated, in the adjustment of his wages, those dangers which arise from the carelessness of fellow-servants, without any reference whatever to the nature of their employment

or duties. Haugh v. Texas, etc., R. R. Co., 10 Otto; Indianapolis, etc., R. R. Co. v. Morganstein, Chicago "Legal News," October 7, 1882, Vol. 15, No. 4. But without further discussion of the question of the master's immunity I prefer to rest the decision on other ground.

It is his duty to furnish his employees with proper machinery or instrumentalities for their use in the work assigned them, and to see to it that the same are kept in a reasonably safe condition, or in reasonable repair. He may intrust this duty to others, but he cannot by so doing escape the responsibility for its negligent non-performance. The acts of his agents in this regard are his acts their negligence is his negligence. This rule applies to individuals, and there is no good reason for exempting railroad and other corporations from its operation. It is true that corporations can act only by their agents, but that is no reason for not holding them to the same personal responsibility as natural persons. Conduct which amounts to personal negligence as against an individual should, and does, amount to the same thing against a corporation acting by its proper officers or agents. Railroad companies are bound to use due care in seeing that their cars and other rolling stock are maintained in a reasonably safe condition; and when an employee a brakeman, for instance-in the proper discharge of his duty, is injured from a failure on the part of the company to perform this personal duty, it is liable. Haugh v. Texas, etc., R. R. Co. supra; R. R. Co. v. Frost, 17 Wall. 557; Dillon v. Union Pacific R. R. Co., 3 Dillon, 319; Ford v. R. R. Co., 110 Mass. 241; Gibson v. Pacific R. R. Co., 46 Mo. 163.

The master is bound to protect the servant, not against all risks, but against risks which could be avoided by the exercise of reasonable care on the part of the master. The brakeman's employment exposes him to constant peril under the most favorable conditions. He is expected and required to act with dispatch in coupling and uncoupling cars, and when he is negligently required by the proper officers or agents to handle cars out of repair, unfit for use and dangerous, and in doing so is injured, perhaps for life, without fault on his part, he should in justice have a remedy against his employer.

This road and all its possessions were in the hands of a receiver, who was operating it at the time of the accident. He, of course, sustained to the petitioner the relation of master, and the neglect of his proper agent, or agents, to condemn the coal car and keep it out of use until repaired, was his neglect-for which he is liable.

It does not appear from the evidence that the petitioner knew the coal car was out of repair when he ran in, as he was accustomed to do, and as brakemen usually do, to make the coupling, or that, without stopping and looking before running in, he might have scen that it was unfit for use. He testified that he discovered for the