
    Railway Company v. Erick.
    
      Railroad, compa7ii.es — Defective cars, etc.— When chargeable with k7iowledge of — How overcome — Presmnptive diligence, not sufficient— When prima facie evidence of 7ieglige7ice — B7irde7i of proof — .Fellow servant.
    
    1. A railroad company is chargeable with knowledge of defects in its cars, locomotives, machinery and their attachments, as provided in the second section of the act of April 2, 1890, 87 Ohio Laws, 149; and to overcome the effect of such knowledge, the company must show, that in fact it did not have such knowledge, and that it used due diligence to ascertain and remedy such defects.
    The presumption of diligence raised by proof of the employment of competent and careful employes, will not be sufficient to overcome the effect of the knowledge of defects, which, by this statute, it is deemed to have.
    2. In the trial of a personal injury case against a railroad company for injuries caused by defects in its cars, locomotives and machinery, or their attachments, the defects so causing injury are prima facie evidence of negligence on the part of such corporation ; and by force of this statute, the burden is thrown upon the company to show by proof that it has used due diligence, and is not guilty of negligence.
    3. By virtue of the provisions of the third section of this statute, a chief inspector of cars, having other inspectors under him, is not the fellow servant of a brakeman.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Fairfield county.
    On March 21, 1892, Georg’e W. Erick, plaintiff below, filed his petition against The Columbus, Hocking Valley & Toledo Railway Company, defendant below, in which he averred that the defendant below was a corporation duly organized and incorporated under the laws of the state of Ohio, and at the time of the injury complained of, owned and operated a line of railroad extending from the city of Columbus to and through the county of Fairfield and state of Ohio.
    That the plaintiff had been employed by the defendant in the capacity of brakeman for about nine months. That on the 2d day of August, 1891, he was engaged as brakeman on a freight train which started from the city of Columbus in the evening of that day, and when near the city of Lancaster, at about 11:30 o’clock at night, his duty called him to put on the brakes on the cars, and that in so doing he took hold of the brake on a coal car, No. 24,268, and wound up' the slack in the chain on the brake, and while setting the brake the brakewheel suddenly slipped and fell off the brake staff, and thereby threw plaintiff off the train upon the side track and greatly injured him.
    Plaintiff avers that the defendant below was negligent in not furnishing him reasonably safe and properly constructed cars, brakes and appliances for use in his employment as such brakeman. That it was the duty of the company to have carefully inspected the car and brake before placing it in the train, which it failed to do; that it was the duty of the company to have properly adjusted the wheel to the brake staff, and to have fastened the same by means of nuts or other appliances, so that the wheel would not slip or come off in the usual operation of setting the brake; that the wheel was not properly adjusted to the brake, and'was loose, and came off while being used by plaintiff, without fault on his part, and while he was using’ the same with due care; that he had no knowledge of any defect in the wheel or brake staff; that from the time he left Columbus early in the evening, he had used the same brake several times before it finally broke, and that the wheel was defectively adjusted to the brake staff, of which he had no notice or knowledge.
    The defendant filed its answer to this petition April 20, 1892, setting up thirteen several defenses, denying most of the allegations of the plaintiff, and averring that he was guilty of contributory negligence in the use of the brake, and in not inspecting the brake himself before he left Columbus, and at other times before the injury; and in not discovering the defective condition of the brake; and averring that the car was carefully inspected, together with its brake staffs and other attachments before leaving Columbus, by defendant’s inspectors, who had been selected with care, and who were competent and performed their duties carefully and without negligence. And certain rules of the company are pleaded, of which defendant avers the plaintiff had knowledge, and failed to observe.
    The reply of the plaintiff to the answer of defendant is a general denial. The case was submitted to a jury upon the petition, answer, reply, testimony, arguments, and charge of the court, and a verdict returned in favor of the plaintiff. A motion for a new trial was filed by defendant below and overruled, and judgment entered on the •verdict. The circuit court, on a petition in error, affirmed the judgment of the court of common pleas, and thereupon the railroad company filed its petition in this court to reverse the judgment of the circuit court, and of the court of common pleas.
    
      
      C. O. Hunter and. A. I. Vorys, for plaintiff in error.
    If the injury to the defendant in error, was the combined fault of both the defendant in error and plaintiff in error, no recovery can be had. Ry. Co. v. Barber, 5 Ohio St., 541; Zimmerman v. The Hannibal & St. Joseph Ry. Co., 2 A. & E. 191.
    If the injury to the defendant in error was the result of carelessness of a fellow servant, the railroad company is not responsible for such injury and no recovery can be had. Whalen v. Ry. Co., 8 Ohio St., 249; Ry. Co. v. Celley, Admr., 1 C. C. Rep., 267; Ry. Co. v. Webb, 12 Ohio St., 475; Ry. Co. v. Fitzpatrick, 42 Ohio St., 318; Ry. Co. v. Barber, 5 Ohio St., 541; Ry. Co. v. Crawford, 24 Ohio St., 631; Ry. Co. v. Devinney, 17 Ohio. St., 197; 135 Mass., 201; Makin v. Ry. Co., 15 Am. & Eng. Ry. Cases, 196; Wonder v. Baltimore & Ohio R. R. Co., 32 Md., 411; The Cleveland, Columbus & Cincinnati R. R. Co. v. Anthony Keary, 3 Ohio St., 201; Chicago & Alton R. R. Co. v. Bragonier, 11 Bradwell (Ill.), 516. . .
    The statutes, 87 Ohio L., 150, neither changes nor modifies this proposition. The inspectors and Erick were fellow servants.
    It was a continuing duty on the part of Erick to examine the brakes, not only for his own preservation, but the duty imposed upon him by reason of his employment for the protection of the lives and property of others. Whart-Neg., Sec. 213; Warner v. Ry. Co., 39 N. Y., 468; Degraff v. Ry. Co., 3 T. & C. (N. Y.), 255; Ry. Co. v. Donahue, 75 Ill., 106; Ingalls v. Bills, 9 Metc., 1; Simmons v. Nantucket, 97 Mass., 361; Ford v. Ry. Co., 110 Mass., 240; Ladd v. Ry. Co., 119 Mass., 412; Tinney v. Ry. Co., 62 Barb., 218; Deppe v. Ry. Co., 36 Iowa, 52; Smith v. St. Louis & Co., 69 Me., 32; S. C. 33, Am. Rep., 484; Rains v. St. Louis & Co., 71 Mo., 164; S. C. 36 Am. Rep., 459; Dewitt v. Ry. Co., 50 Mo., 302; Kelley v. Silver Spring Co., 12 R. I., 112; S. C. 34 Am. Rep., 615; Author N. P., 625; Cooley, Torts, 559; The Penn. Co. v. Lynch, 90 Ill., 333; Gilson v. Erie Ry. Co., _ N. Y., 449; Muldowney v., Illionis Central R. R. Co., 8 Amer. Ry. Rep., 487; 39 Ia., 615; Way v. Same, 40 Ia., 341; 8 Amer. Ry. Rep., 400; Houston & Texas Central R. R. Co. v. Myers, 55 Tex., 110; 8 Amer. and Eng. R. R. Cases, 114; Baker v. Western & Atlantic R. R. Co., 68 Ga., 133; Le Clair v. St. Paul & Pacific R. R. Co., 20 Minn., 1; Porter v. Hannibal & St. Joseph R. R. Co., 71 Mo., 66; 2 Amer. & Eng., R. R. Cases, 44; Chicago & Alton R. R. Co. v. Munroe, 85 Ill., 25; Umbach v. Lake Shore & Michigan Southern Ry. Co., 83 Ind., 191; 8 Am. & Eng. R. R. Cases, 98.
    Before the defendant in error can recover, the proof must establish — •
    First. That the brake was defective.
    Second. That the railway company had notice thereof or ought to have had.
    Third. That the defendant in error did not know of the defect and had not equal means of knowing with the railway company.
    Fourth. That the defendant in error at the time of said accident in his use of said brake exercised the proper precaution for his self preservation to know that said brake was in proper working order and safe for him to use. Ry. Co. v. Jewell, 46 Ill., 99; 92 Am. Dec., 240; Toledo, Wabash & Western Ry. Co. v. Eddy, 72 Ill., 138; Patterson v. Pittsburg & Connellsville R. R. Co., 76 Pa. St. 389; 9 Am. Ry. Rep., 381; Wood on the Law of Master and Servant, Sec. 366; Ry. Co. v. Barber, 5 Ohio St., 541 and other cases cited; Wright v. Ry. Co., 25 N. Y., 562; Kunz v. Stuart, 1 Daly, 431; Malone v. Hawley, 46 Cal., 409.
    Before the defendant in error can recover, two things must concur, the fault of the plaintiff in error, and no want of ordinary care on the part of the defendant in error. Buswell Law of Personal Injury, Sec. 111.
    The brakeman undertakes his engagement in view of the nature and hazards of his employment and has the right to expect safe cars to be furnished for his use, and such provisions for their inspection, as is most common and usual in the business of railway companies, and being presumed to contract in contemplation of this he can require no more. Ry. Co. v. Barber, 5 Ohio St. 541; Salters v. Canal Co. 3 Hun., 338; Stark v. Patterson, 6 Phila. Rep., 225; Whart. Neg., Sec. 212; 12 Ohio St., 425; 24 Ohio St., 631; 42 Ohio St., 318; Smith v. C. M. & St. P. Ry., 42 Wis., 520; Patterson Railway Accident Law, p. 345; Ry. Co. v. Ward, 61 Ill., 130; Ry. Co. v. State, 6 Am. Ry. Rep. 276; Wright v. Ry. Co., 25 N. Y., 562; Warner v. Ry. Co., 39 N. Y., 468; Mercer v. Ry. Co., 64 Pa. St., 225; Ladd v. Ry. Co., 119 Mass., 412; Brown v. Ry. Co., 58 Me., 384; McPadden v. Ry. Co., 44 N. Y., 478; Carroll v. Ry. Co., 58 N. Y., 126; Ry. Co. v. Love, 10 Ind., 554; 29 Conn., 548; Redhead v. Ry. Co. L. R. 2 Q. B. 412; L. R. 4 Q. B. 379; Wharton on Neg., Sec. 209; Cooper v. Ry. Co., 23 Wis., 668; Pike v. Ry. Co., 40 Wis., 586; Ry. Co. v. Henley, 48 Ohio St., 608.
    If the accident was the result of a latent defect it was a misadventure falling among the casualties incident to the business, and for which no one could be blamed. Wharton Neg., Sec. 214; Ry. Co. v. Barber, 5 Ohio St., 541; Ry. Co. v. Sweeney 52 Ill., 325; Ry. Co. v. Gretzner, 46 Ill., 74; Ry. Co. v. Van Patten, 64 Ill., 510; Ry. Co. v. Green, 31 Ill., 19; Ry. Co. v. Lee, 68 Ill., 576; Ry. Co. v. Hetherington, 83 Ill., 510; Ry. Co. v. Colwell, 3 Bradw., 548; Ry. Co. v. Berlink, 2 Bradw., 427.
    Erick must remove the presumption of negligence. The record proof shows that he was negligent. Ry. Co. v. Forman, 73 Tex., 311; Mentzer v. Armour, 18 Fed. Rep., 373; Smith v. Ry. Co., 18 Id., 304; 2 Thompson on Neg., 1227-1237; Cooley on Torts, 796; Shear. & Red. on Neg. Sec. 59; Wharton on Neg. Sec., 421, 422; Addison on Torts, 17, 366; Bigelow on Torts, 596.
    
      M. A. Daugherty and George E. Martin, for defendant in error.
    At the trial Erick proved his injury and the circumstances under which it occurred, and he also likewise clearly proved by the testimony, that the defective and unsafe condition of the brake-staff and brake-wheel was the sole cause of his injury. His case was then complete and he was entitled to the verdict of the jury for such damages as the evidence shows he had suffered. This is true because of the provisions of section 2 of the act of the legislature passed April 2, 1890, Vol. 87, Ohio Laws, pages 149 and 150. .,
    Prior to that legislative act, to entitle Erick to recover, it would have been incumbent upon him to prove: •
    
      Fvrst. His injury.
    
      Second. That the injury was due to the defective and unsound condition of the machinery and appliances of the company.
    
      
      Third. That the company knew of the defective and unsafe condition of such machinery and appliances, or by the exercise of reasonable care and diligence, ought to have known of their unsafe condition.
    The effect of section 2 of the act referred to relieved Erick from establishing at the trial that the company knew, or by the exercise of reasonable care and diligence ought to have known, of the unsafe and defective condition of the brake wheel and brake staff. And the common law of negligence applicable to such cases is changed and modified by that statute to the extent of relieving the injured person from establishing this third proposition. Proof of injury caused by defective machinery or attachments now makes a prima facie ease. The burden of proof then shifts to the company.
    Now, the company does not claim that, it offered any evidence at the trial showing or tending to show that the brake-wheel and brake-staff were reasonably safe and secure for the purpose for which they were intended and used. But it claims to have discharged its whole duty by the pretended inspection that it claims to have made. The only 'proof offered by the company on the subject of inspection was that it maintained four or five car inspectors at the south depot in Columbus, whose duty it was to inspect ears each day and night, and not one of these car inspectors pretended to testify that the car to which this brake was attached, or the train of which the car was a part, was in fact inspected by them or any of them.
    
      It is the admitted duty of the company to furnish and provide suitable and safe machinery, tools and appliances for the use of its employes.
    We have already seen that the brake-staff and wheel were defective, and that such defect was the sole cause of the injury to Erick.
    The judgment he obtained in the lower courts against the company securely rests on the breach of duty by the eompanjr in failing and neglecting to provide for him a suitable brake-wheel and brake-staff. And this ground of his right to recover from the company is wholly independent of the question whether there was proper inspection. The company owed to him two duties:
    
      First. To provide him with a proper brake-staff and brake-wheel.
    
      Second. By careful and proper inspection to know that the brake-wheel and brake-staff were in safe working condition.
    The argument of the learned counsel for the company wholly ignores this first duty the law puts upon his client, and he undertakes to avoid the force of the second on the plea that the car inspectors were Erick’s fellow servants, and we will consider that next.
    The common law rule of the non-liability of the master for injuries to one of his servants occasioned by the negligence of a fellow servant has been altered by the third section of the statute already mentioned.
    The chief car inspector of the company, who was at the head of that department, and who gave orders to the subordinate car inspectors which they obeyed and performed, was then, by virtue" of the provisions of this section 3, the superior of Erick and not his fellow servant. Cooley on Torts, 561; Little Miami Ry. Co. v. Stevens, 2 Ohio St., 415; Cleveland & C. Ry. Co. v. Kearney, 3 Ohio St., 201; Berea Stove Co. v. Kraft, 31 Ohio St., 287; Railway Co. v. Lavalley, 36 Ohio St., 221.
    Harmon was the chief car inspector, and if he had done his duty this car with the defective brake would not have been permitted to go into the train. The company is bound to Erick for Harmon’s negligence. The rule announced in Ry. Co. v. Webb, 12 Ohio. St., 475, and in Ry. Co. v. Fitzpatrick, 42 Ohio St., 318, that car inspectors and brakemeii are fellow servants is changed and modified by the statute in question.
    ■ It is claimed that there was a continuing duty on the part of Erick to examine the brakes, not only for his own preservation, but that it was a part of his employment so to do. In other words, the broad claim is now made that a brakeman is, under this rule, a car inspector.
    The company claim to have promulgated rule 223, on page 109 of the Record.
    The object of this rule 223 is cunningly concealed. Its purpose is to put upon a brakeman the same duties imposed upon a car inspector, so that if he be injured because of the defective machinery he is required to use, the company may answer it was the brakeman’s duty to know that the appliances and attachments as well as the cars were in fit and proper conditions for use. This rule 223 is void for two reasons.
    
      First. It conflicts with that well established legal principle that the employer is always bound to furnish and provide the employe with safe and suitable machinery, tools and appliances to carry on the* former’s business. Railway Co. v. Webb, 
      12 Ohio St., 475; Railway Co. v. Fitzpatrick, 42 Ohio St., 318; Cooley on Torts, 556.
    
      Second. It contravenes the first section of the act of April 2, 1890, 87 O. L., 149.
    If the company by its rule can shift the obligation of furnishing and providing safe and secure machinery, cars and breaks, from itself to its brakemen, then the corporation is saved harmless from all claim for damage for injury to the brakemen, because liability only follows a breach of duty. If there was no duty on the company, there ■ can be no liability. If the duty be put upon the employe by the rule then the company is absolved from all blame. "We maintain that this rule is a cunningly devised one, the obvious purpose of which is to escape liability for injury to the employe of the corporation for unsafe and defective cars and their attachments and belongings, by transferring the duty of providing and maintaining them in a safe and fit condition for use and operation, from the company to the employe, and thus in this indirect way does this rule undertake to save the company harmless, and is therefore forbidden by that portion of section 1 which declares that it shall be unlawful for such corporation to adopt or promulgate any rule or regulation in which, or bjrthe terms of which, either directly or indirectly, or in any manner the corporation is to be held harmless for injury on account of its defective or insufficient ears, machinery and attachments.
    Another proposition of the argumentof opposing counsel is that a brakeman takes upon himself the hazzards of his employment, but he has the rig'ht to expect safe cars and machinery to be provided for him and which are to be inspected, and he can require no more. This proposition needs modification to be sound. Railway Co. v. Barker, 5 Ohio St., 541; Railway Co. v. Knittal, 33 Ohio St., 468.
    Another proposition is that if the injury to Erick was the result of a latent defect it was a misadventure, and there is no blame on either of the parties.
    Again, counsel for the company forgets the provisions of section 2 of the act to which reference has so often.already been made, and which holds the company to knowledge of the defects. And it will be remembered that the company wholly failed to call a single witness to speak as to the condition of the brake or car to which it was attached. It made no effort at the trial to overcome by proof ■ the guilty knowledge the law puts upon it.
    Another proposition is that Erick must remove the presumption of negligence, of which the record shows he was guilty. There is no presumption of negligence as against either party. Railway Co. v. Crawford, 24 Ohio St., 631; Huff v. Austin, 46 O. S., 386.
    The question of contributory negligence is left to the jury under proper instructions from the court. Railway Co. v. Crawford, 24 Ohio St., 631; Kelly v. Howell, 41 Ohio St., 438; Railway Co. v. Fleming, 30 Ohio St., 480; Manufacturing Co. v. Morrissey, 40 Ohio St., 148.
    
      Powell, Rickets & Black, also for defendants in error, filed a brief in the case.
   Burket, J.

In the argument of the plaintiff in ■error, it is urged that the court erred in certain rulings as to testimony, and that the verdict is not supported by sufficient evidence. This court will not usually review a case upon the testimony, and find no occasion now to depart from the general rule. We think there was no error in the rulings of the court below upon the admission or rejection of testimony.

Objection is also made to certain parts of the charge. No exception is taken to any particular part of the eharg-e, but the exception is to the whole charge, and to every instruction contained therein. Such an exception presents no question for review on error.

Defendant below presented six several requests to charge, and the court gave the first and fifth requests, refused the third and sixth, and modified the second and fourth. The second, third, fourth and sixth requests, are as follows:

“ Second. If the jury shall find from the evidence that the defendant had employed competent inspectors, whose duty it was to inspect the train and car in question before the same left Columbus, and the same were so inspected with a view to determining whether the cars and their appliances, including the brake-wheels and staffs, were in proper repair, and if the jury find that at the time of such inspection the brake-wheel and staff were unsafe, but their unsafe condition was not detected, and could not be detected by the use of ordinary care of the inspectors, and by reason of such unsafe condition of said brake-wheel and staff the alleged injury occurred, the defendant is without fault, and there can be no recovery in this case, although the plaintiff exercised proper care in the discharge of his duties.
" Tim'd. If the jury shall find from the evidence, that there was such a defect in the brake-wheel and staff, as alleged in the petition, yet if the existence of such defect at the time of the alleged accident was owing to the neglect of other operatives of the railroad, supposed to be competent, whose duty it was to have inspected said brake-wheel and staff at the Columbus yard, before the train left, but who neglected to do so, and negligently suffered the same to continue in use when not roadworthy, if such defect was unknown to the company, it was -not liable therefor, inasmuch as such delinquent inspector is to be regarded as a fellow servant of the brakeman in a common service, and the plaintiff cannot recover in this action.
“Fourth. A railroad company is not liable to an action for damages for an injury received by a brakeman of one -of its trains, in consequence of the insufficiency of or defects in the machinery or apparatus, of the train under his charg’e, where such insufficiency or defects were unknown to both the brakeman and the company and neither party was at fault.
‘ ‘ Therefore, if the company provided inspectors at the Columbus yard, whom it had reason to believe were competent, whose duty it was to carefully inspect the cars and their appliances before they were permitted to depart, and if the alleged accident occurred from the alleged defects of the brake-wheel and staff, without fault of plaintiff, he cannot recover in this action.
Sixth. If the rules of the company required the plaintiff to inspect the trains on which he acted as brakeman, the cars and the brake-wheel and staff and other machinery and appliances, before the same left the yards at Columbus, and see that the same were in proper and safe condition and ready for moving, and to report any defects on cars or appliances to the proper officers of the company, and such rule was known to plaintiff and he failed to make such inspection, or so carelessly and negligently made such inspection that he did not discover any defect in the brake-wheel and staff in question, and the said brake-wheel and staff were then unsafe, but by reason of such failure of plaintiff to so inspect them, or by his so carelessly inspecting’ them, their unsafe condition was not discovered and so reported, and the alleged accident occurred by reason of such defect, then the plaintiff failed and negiected to perform his duty in that behalf, and such neglect will prevent him from recovering in this action. Provided the company used reasonable' care in the employment of competent persons to inspect said cars and brake-wheel and staff and appliances, before the plaintiff assumed his duties in respect to the same.”

The second request was modified and given as follows:

Second. If the jury shall find from the evidence that the defendant had employed competent inspectors, whose duty it was to inspect the train and car in question before the same left Columbus, and the same were properly inspected as defined in the court’s charge, with a view to determining whether the cars and their appliances, including the brake-wheels and staffs, were in proper repair, and if the jury find that at the time of such proper inspection the brake-wheel and staff were unsafe, but the unsafe condition was not detected and could not be detected by the use of ordinary care of the inspectors, and that by reason of such unsafe condition of said brake-wheel and staff the alleged injury occurred, the defendant is without fault, and there can be no recovery in this case, although plaintiff exercised proper care in the discharge of his duties.”

The first paragraph of the fourth request was given, and the last paragraph refused. Was there error in the refusal to charge the third and sixth requests, or in modifying the second and fourth ?

All these requests are based on the law as it stood before the enactment of the statute of April 2, 1890. Ohio Laws, vol. 87, page 149. The case at bar arose, and was tried under this statute, and its provisions must govern in testing the correctness of the rulings of the court below, upon the questions of law arising on the trial.

The second section of the above mentioned act is as follows:

“Section 2. It shall be unlawful for any such corporation to knowingly or negligently use or operate any car or locomotive that is defective, or any car or locomotive upon which the machine^ or attachments thereto belonging are in any manner defective. If the employe of any such corporation shall receive any injury by reason of any defect in any car or locomotive, or the machinery or attachments thereto belonging, owned and operated, or being run and operated by such corporation, such corporation shall.be deemed to have had knowledge of such defect before and at the time such injury is so sustained, and when the fact of such defect shall be made to appear in the trial of any action in the courts of this state, brought by such employe, or his legal representatives, against any railroad corporation for damages, on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such corporation.”

The presumption of knowledge of the defect, before and at the time of the injury, is, by this statute, chargeable to the company; and this statutory presumption can not be overcome by proof of facts which only raise a presumption that the company did not have such knowledge. Competent and careful inspectors are presumed to properly inspect the cars and their attachments, but such presumption would not overcome the statutory presumption of knowledge of defects before and at the time of the injury. It would take an actual and proper inspection, or its equivalent, to overcome the statutory presumption of knowledge of such defects.

It will be noticed that this section of the statute also provides, that in the trial of a personal injury case against a railroad company, the fact of such defect in its cars or their attachments, shall be prima facie evidence of negligence on the part of such corporation.

It will be noticed that it is not the servants, or such as are fellow servants, that are deemed guilty of negligence, but the corporation itself.

In such case when the plaintiff has shown that he was injured, and that such injury was caused by a defect in the cars or their appliances, the statute raises the presumption of negligence on part of the company, and the burthen of proof is thrown upon the company, to overcome thé prima facie case of negligence thus made by the statute.

It was claimed in this case that there was a chief inspector at the company’s yard at Columbus, having other inspectors under him. If so the chief inspector would not, by the provisions of the latter part of the third section of this statute, be a fellow servant of the brakeman, and therefore the last paragraph of the fourth request, together with the third and sixth requests, assuming as they do, that all of the inspectors were of equal rank, were properly refused.

In view of the provisions of this statute it can not'be affirmed, as a matter of law, that the company was without fault, even though the jury should find as set forth in the second request. The defect in the brake existed, the company is presumed to have knowledge of the defect, no inspection of the brake was made, and no one can tell whether the defect could have been detected or not by a proper inspection, and hence it would be trifling with the jury, to submit to them an instruction, based upon a proposition entirely speculative in its character, and having no evidence to support it.

We And no error in the record.

Judgment affirmed.  