
    Smith vs. The Chicago, Milwaukee & St. Paul Railway Company.
    Negligence : Special verdict held to he unsupported by evidence.
    
    In an action against a railroad company, by one of its brakemen, who had been injured by the breaking of a brake-shaft or rod, the jury found specially that the defendant was negligent in not having applied a proper and sufficient test to the rod. It appears that the rod broke near the platform, under the cogwheel, from an old crack or flaw constituting a latent defect; defendant's evidence tended strongly to show the exercise of great care on its part in the inspection of its cars, and the selection and testing of the materials used therein; and there was no contrary testimony. Held, that there was no evidence to support the finding; and a judgment based thereon is reversed.
    APPEAL from tbe Circuit Court for Monroe County.
    While plaintiff, who was a brakeman on one of defendant’s trains, was engaged in tbe performance of bis duty as such by putting on tbe brake upon one of tbe cars of a “ wood train,” tbe brake-staff, as be alleges, “ broke in twain just below tbe wheel, near tbe top of tbe car, commonly called a cogwheel, on account of an old crack or seam in tbe same, unknown to tbe plaintiff and which be bad no opportunity of knowing.” In consequence of tbe breaking of this staff or rod, tbe plaintiff was thrown upon tbe track, and suffered severe injuries. This action was brought to recover for these injuries; tbe complaint alleging that defendant was guilty of negligence in permitting said staff or rod to be affixed to tbe car and to remain thereon.
    There wras a special verdict, tbe essential portions of which are sufficiently stated in tbe opinion. There was also a general verdict in plaintiff’s favor. A new trial was denied; and, from a judgment pursuant to tbe verdict, defendant appealed.
    Briefs were filed, by Melbert B. Gary for appellant, and A. E. Bleehman and J. M. Morrow for respondent; and tbe cause -was argued orally by John W. Gary for appellant, and A. E. Bleehman for respondent.
    For tbe appellant it was argued, 1. That a railroad company is bound only to reasonable care and diligence in providing safe materials and machinery. Wharton on Neg., § 213; G., B. ds Q. B. B. Go. v. Stumps, 55 Ill., 367; Wedgewood v. G. <& N. W. Bailwcvy Go., 41 Wis., 478. 2. That mere proof that tbe rod broke from a latent defect was not sufficient, and, as the only evidence in this case as to the method pursued by the company in testing its materials and machinery was to the effect that such method was the best known to science, and the one universally accepted, the jury could not find the defendant negligent in that respect, without going outside of its province and determining facts otherwise than upon the evidence before it. B. c& 0. B. B. v. The State, in Maryland Court of Appeals, October term, 1874, reported in 6 Am. Railway R., 276; Wright v. JT. Y. C. B. B. Co., 25 N. Y., 562; Warner v. Erie Bailway Go., 39 id., 468; Meier v. Pa. B. B. Co., 64 Pa. St., 225; Ladd v. B. B. Go., 119 Mass., 412; Brown v. Bailway Go., 58 Me., 384; and T. W. c& W. B. B. Co. v. Beggs, in supreme court of Illinois, reported in Cent. L, J., Aug. 24, 1877, p. 193; McPadden v. W. Y. Cent.B. B. Go., 44 N. Y., 478; Carroll v. B. B. Go., 58 id., 126; I. & C. B.B. Go. v. Love, 10 Ind., 554; 29 Conn., 548; Bedhead v. Mid. Bailway Go., L. R., 2 Q. B., 412; L. R., 4 Q. B., 379; Wharton on Neg., § 209; Cooper v. Bailway Co., 23 Wis., 668; Pilee v. Bailway Co., 40 id., 586. The jury must have assumed that it was the duty of the company to test every brake rod by bending it hot and cold; but this is unsafe, because the strength of the rod would be greatly diminished after undergoing such a test. And, even if safe, it would be impracticable. To test a bar of iron scientifically and accurately takes considerable time; and it would be a physical impossibility to thus test every one of the million or more rods, pins, rings, wheels and rails, annually purchased by it. The universally accepted method, the world over, of testing merchandise in large quantities, is by testing samples of each lot.
    For the respondent it was argued, that, as plaintiff’s evidence tended to show that the flaw in the brake-staff was on the outside of the rod, and might have been seen by careful inspection of the rod, and as defendant’s master car-builder, who had had charge of the building and purchase of all defendant’s cars, testified that such a flaw could be discovered if lie were to apply a test to tbe rod and bend it, tbe jury were justified in finding tbe defendant guilty of negligence in not knowing tbe defect. Coombs v. AC B. Oordago Co., 102 Mass., 572; Fordv. F. B. B. Co., 110 id., 240; Laddv. N. B. B. B. Co., 119 id., 412, and cases cited; Zoning v. B. B. Co., 49 N. Y., 521; Plank v. B. B. Co., 60 id., 607.
   Oole, J.

Passing by tbe other exceptions taken on tbe trial, we tbink the circuit court erred in denying tbe motion for a new trial, for tbe reason that there was no evidence which warranted tbe jury in finding that tbe defendant was guilty of negligence in not applying a proper and sufficient test to tbe brake-rod. As we understand tbe special verdict, tbe company was not found guilty of any other act of negligence or misconduct, than in that particular. Por, in answer to the third question submitted, whether tbe defendant was guilty of negligence in not knowing of tbe defect in tbe brake-staff, or in not providing a safe and sufficient one, and, if so, in what the negligence consisted, tbe jury answered that they found tbe defendant guilty in not applying a proper and sufficient test to tbe brake-rod. It is true, tbe jury further found that tbe defendant, by tbe exercise of ordinary care, skill and diligence, might have known of tbe defect in tbe brake-rod, though it did not know of such defect; but this evidently refers to tbe failure to apply tbe proper test to discover it. In that matter alone, then, tbe company failed to perform its duty, and on that ground tbe plaintiff’s right to compensation for tbe injury received is made to rest. It is very obvious that tbe verdict must be founded upon evidence, and tbe jury could find no fact not established by or fairly-inferable from tbe testimony given.

On tbe part of tbe plaintiff no evidence was offered which tended in any way to prove that tbe company failed to exercise due and proper care and diligence in inspecting all cars wbicb it purchased of other parties, or in testing the iron and materials from which the cars manufactured by itself were made. It does not appear whether the car in question had been purchased by the company, or manufactured in its shops. It was a new flat car, which had been taken into the train but two or three days prior to the accident, and appeared to be a good car. When near Sparta, on returning from La Crosse, where the train had been on the morning of the fifth of May, 1873, to deliver a load of wood, the usual signal to put on brakes was given by the proper officer of the train; and the plaintiff, in the discharge of his duty as brakeman, set a brake on the car ahead, and then wrent to this car, which was the fourteenth from the engine; and, while he was engaged in setting the brake, the brake-shaft or rod broke just below the cog-wheel near the platform, and he was thrown under the cars onto the track, and sustained the serious injuries of which he complains. It appeared that there was an old crack or flaw in the brake-rod, which was unknown to the plaintiff and the other employees of the company, and which doubtless rendered the rod defective and unsafe. The plaintiff testified, in substanee, that he had been in the employ of the company about four years; that he was a regular brakeman; but that it was also, his business to look over and inspect the cars of his train every day, and see if everything wras in order, and to report and repair defects if he found any. lie had not been working for a week before the 5th, but on that morning returned to his work, and looked over the first eight cars from the engine, when the train started from Tomah for La Crosse. The train started right back from La Crosse after the wood was unloaded; but whether the plaintiff had time and opportunity to continue the inspection of the cars while at La Crosse, is a point left in doubt upon the evidence. But in regard to the tests applied to the brake-rods, the defendant proved by John Baillie, its master car-builder, that the iron was purchased of the best makers, and was of the best quality; that samples of each lot were tested in the defendant’s shops in the usual and most approved manner; that all materials were inspected, as well as the work done, by first-class inspectors; that he himself examined thoroughly all cars purchased by the company, as to the character of the cars, the material used, and their manufacture; and that no car was allowed to go on the road in which he could discover any defect which would make it unsafe. It appeared that the system of inspection of cars which were purchased, andthe tests applied to the materials of which its cars were manufactured, were the same as those adopted or applied by railroad corporations generally. Certainly there is not a particle of testimony which tends to show that the employees of the company whose duty it was to make tests as to the sufficiency of materials used for cars, or to inspect and examine those purchased, were not skillful and competent to properly perform their duty; or that they had failed to perform it in respect to the car in question; or that they had neglected to apply the usual, well known and approved tests to the iron, or had inspected the car in a careless manner. So far as we are able to judge from the testimony, the defect in the brake-rod was a latent one, which would not likely be detected or discovered by the usual examination or inspection of the car. And, as was argued by the counsel for the company, it would undoubtedly be impracticable to apply tests to every brake- rod which is used upon defendant’s cars, and, if compatible with the nature of the business, would be of doubtful utility. There should be at least some testimony tending to show that the tests applied to determine the sufficiency of the brake-rod were inadequate and not in accordance with the most approved methods, to justify the finding of the jury.

In order to prevent all misapprehension on this point, we add that it was the plain duty of the company to use due care and skill in providing suitable and safe machinery for the plaintiff to operate, and to adopt or apply all reasonable and •usual tests to discover any defect in the brake-rod. This is the degree of diligence which this court has decided the law imposes on such corporations (Brabbits v. The C. & N. W. R’y Co., 38 Wis., 289; Wedgwood v. The C. & N. W. R’y Co., 41 id., 478); and we have no intention of relaxing that rule. We adopt, as substantially correct, the language of the court of appeals in Lanvng v. N. Y. C. R. R. Co., 49 N. Y., 521, that the duty of the master to the servant, or his implied contract with the servant, requires “ that the servant shall be under no risks from imperfect or inadequate machinery, or other material means and appliances, or from unskillful or incompetent fellow-servants of any grade. It is a duty or contract to be affirmatively and positively fulfilled and performed. And there is not a performance of it until there has been placed for the servant’s use perfect and adequate physical means, and for his help-meets fit and competent fellow-servants; or due care used to that end. That some general agent, clothed with the power and charged with the duty to make performance for the master, has not done his duty at all, or has not done it well, neither shows a performance by the master, nor excuses the master’s nonperformance. It is for the master to do, by himself or by some other. When it is done, then, and not until then, his duty is met, or his contract kept.” pp. 532-3. The servant then takes the risks of the employment, and of a failure of the machinery from any latent defect not discovered by practical tests. And this court, moreover, has held expressly that the negligence or misconduct of the officer or employee whose duty it is to attend to these things, and who, fro hae vice, represents the company in the matter, is the negligence or misconduct of the company itself. Craker v. The C. & N. W. R’y Co., 36 Wis., 657. See also Flike v. Boston & Albany R. R. Co., 53 N. Y., 549; Corcoran v. Holbrook et al., 59 id., 517; Ford v. Fitchburg Railroad Co., 110 Mass., 240.

The question before us is not one relating to the weight of evidence or degree of proof, but it is where there is an entire absence of testimony to sustain the verdict. For there is absolutely no evidence which tends to show that the company was guilty of negligence in not applying a proper and sufficient test to the brake-rod. For this reason, we think the motion for a new trial should have been granted.

By the Court. — The judgment of the circuit court is reversed, and a new trial ordered.  