Tateman v. Chicago, Rock Island & Pacific Railway Co.
CHARLES A. TATEMAN v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY
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Opinion of the Court
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ELLISON, J.
Plaintiff was in the employ of a grocery company in the city of St. Joseph, which commonly received shipments of merchandise over defendant’s railway. Just before the accident complained of herein the defendant company notified the grocery, company that it had in its yards a carload of goods consigned to it. Whereupon the grocery company ordered plaintiff to go to defendants’ yards and inspect the goods. It was shown by plaintiff that this was a duty which he frequently performed and that in this instance he, as usual, applied to defendant’s agent for an order or permit for him to inspect the carload in question. That he got of the agent a written permit and not finding a “track clerk” in the yards he proceeded to open the car door for the purpose of inspecting the con-, tents, when it fell from its place and injured plaintiff for which he recovered five hundred dollars in damages. It was shown that it was the custom for plaintiff to open the car himself when he could not find the £ £ track clerk, ’ ’ and that when he did find him, the latter would frequently direct him to go and open the car for himself. *453 In this instance plaintiff did not find the clerk and proceeded himself to open the car as was his custom in such situation.
Among objections to the' result in the trial court is one that the petition does not allege' that defendant knew or by exercise of ordinary care could have known of the defective condition of the car. The petition did not contain such specific allegation, hut it did allege “that while plaintiff in a careful and proper manner 'was engaged in an effort to open the door of the car, in order to inspect said merchandise, the door of the car, in consequence of the negligence and carelessness of the defendant in failing to provide and maintain proper, sufficient and safe hinges, fastenings and appliances for holding said door securely on said car and fastening the same, fell,” etc. Such an allegation has been held to be an equivalent averment of knowledge or means of knowledge. Crane v. Railway, 87 Mo. 594 . In Young v. Shickle Co. (103 Mo. loc. cit. 328), the court, speaking of the Crane case, say that, ‘ ‘ an allegation that the defendant negligently furnished an appliance which ‘was defective and unsafe, was equivalent to a statement that the master knew or might have known by the use of ordinary care, of the dangerous and defective character of the appliance.”
Defendant contends that there is no .evidence that the car door was defective. While there might be some ground for the statement that there was no direct evidence specifying the defects, yet there was abundant evidence establishing facts from which an inference of defects was hound to follow. The accident itself was of such a nature as to demonstrate the faulty condition, res ipsa loquitur. Blanton v. Dold, 109 Mo. 74 ; Gallagher v. Edison Co., 72 Mo. App. 576 ; Houston v. Brush, 66 Vt. 331, 342 .
Among instructions for the plaintiff was one informing the jury that in order for the defendant to free .itself from liability on the ground that it did inspect the car and failed to discover defects, the burden was on the defendant to show that it made a proper inspection *454 which was reasonably well calculated to discover the defects. We do not see any obj ection to the instruction. We consider that when a prima facie case was made out against defendant, it then devolved upon it to exculpate itself by a showing of some matter which would avoid liability. Sharp v. Railway, 114 Mo. 101 , and cases cited. This rule is nothing more than requiring each party to present his respective side for the consideration and determination of the jury.
There was given for the plaintiff two instructions bearing upon the custom of the grocery company to have goods inspected, which were consigned to it as these were, and of the right of the company to do so. The objection to them is based on the assertion that there was no evidence to support them. The record does not bear out defendant’s contention. There was ample evidence in that behalf.
An instruction was refused, as offered by defendant, in which it was declared, without qualification, that it did not appear that any duty rested upon defendant to break the seal of the car in order to inspect it. The court amended the instruction as asked, by adding thereto the words, “unless the jury believe such was necessary or proper in order to properly inspect the door of said car.” Without the amendment there was no question left for the jury. With the amendment, it was left to the jury to say whether the matters presented made up a case of negligence on the part of defendant. It has been, and is, the rule in this State that it is the duty of. the railroad company to inspect its cars, even though received from other companies, to see that they are reasonably safe for those who are required to go about them. And our holding is that taking this case in its entirety as it is shown to be by the evidence, the question of the defendant’s proper inspection of the ear and the nature of that inspection were matters for the jury and were properly submitted.
There were some other objections made, but it is believed that what has been already written covers those necessary to notice.
The judgment will be affirmed.
All concur.
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