
    Perry Dedrick by Next Friend, Respondent, v. Missouri Pacific Railway Company, Appellant.
    Kansas City Court of Appeals,
    April 5, 1886.
    1. Railroads — Master and Servants — Duty op Mastery-Knowledge op Defect. — It is the duty of the master to use reasonable and ordinary care and foresight in procuring appliances to be used by those in his employment, and in keeping the same in repair, to the end that they shall be safe, in being used. The servant has a right to rely upon the master performing this duty; and knowledge on the part of the agents of the master, who are intrusted with the duty of procuring the machinery and keeping it in repair, is to be attributed to the master.
    2. --— Evidence as to Knowledge op Defect. — The using of appliances which a reasonable inspection would have shown to be of a defective character is negligence, and such as is sufficient evidence of the knowledge necessary to ¿ability. Certainly it is properly submitted to the jury as tending to show such knowledge and negligence.
    Appeal from. Cooper Circuit Court, Hon. E. L. Edwards, Judge.
    
      Affirmed.
    
    Statement of case by the court.
    Plaintiff being a minor sues by Ms next friend. He complains that being in the employ of defendant as a section hand and while in the performance of Ms duty with due care, he was injured while operating a hand car, on account of the breaking of the lever or “pump handle.” He charges that the handle was defective and decayed and wholly insufficient for the purposes for which it was intended tó be used. That the defendant knew of the defect and insufficiency, or, by reasonable precaution and care, might have known of it, and that he was wholly ignorant of such defect. The answer affirmed the soundness, safety and sufficiency of the handle.
    
      On trial plaintiff recovered a judgment for $1,400.00 and defendant appeals.
    Thomas G. Portis and William S. Shirk, with Thos. J. Portis, for the appellant.
    I. The theory of the petition is that defendant was negligent in failing to provide, for the use of its employes, a hand car reasonably safe and sufficient for the purpose, there being a defect in the handle or lever of the car so provided by defendant. There is no evidence that defendant knew, or had any opportunity to know, unless it can be held that the knowledge of Salin and the foreman, and their negligence, can be imputed to the defendant. There was no negligence on the part of the defendant, or of any agent empowered to act for it, in providing the handle which caused the injury, and there was no case to submit to the jury. 2 Rorer on Railroads 1216 ; 3 Wood’s Ry. Law, sect. 370; Siela v. Railroad, 82 Mo. 435.
    II. The section foreman Doyle, and the other laborer, Salin, were both fellow servants of the plaintiff, and he cannot recover for any acts of negligence on their part. Blessing v. Railroad, 77 Mo. 410; MeGowan v. Railroad, 61 Mo. 528.
    III. Under the evidence in the case he must be held to have had knowledge of defect, if there; was any, and to have assumed the risk, and for this reason the case should have been taken from the jury. Keegan v. Kavanaugh, 62 Mo. 232; Hulett v. Railroad, 67 Mo. 239 ; Porter r>. Railroad, 71 Mo. 78 ; Holán v. Shiekle, 3 Mo. App. 300. The demurrer to the evidence and to the whole case should have been sustained. -
    Draffen & Williams, for the respondent.
    I. It was defendant’s duty to furnish to its servants good, safe, and properly constructed machinery and implements for carrying on its business. If it entrusted this duty to the section foreman, and he was negligent, it fs the negligence of defendant. Biela v. Railroad, 82 Mo. 430; Lewis v. Railroad, 59 Mo. 473; Condon v. Railroad, 78 Mo. 567; Covey v. Railroad, Sup. Ct. Mo. Nov. 16,1885.
    II. The fact that the section foreman, for many purposes, is to be regarded as a fellow servant of plaintiff, •does not make him a fellow servant, while exercising the functions of a master, in furnishing or repairing ma■chinery. If the rule was otherwise, a corporation could •entirely escape liability by putting a two-fold duty upon its servants appointed to furnish good machinery and a safe track.” The foreman stood in place of defendant in these respects. Covey's case, supra.
    
    III. The duty to provide safe machinery is a continuing one. If Doyle was not authorized to repair the defendant was bound to have some one to do it. 2 Thompson on Negl. 984.
    IY. The master is chargeable with the knowledge which he might have acquired by the exercise of due care. Porter v. Railroad, 71 Mo. 67. The jury were .justified in finding as they did, that plaintiff had no notice of the defect, and that it was not so patent that he must be held to have known it.
    Y. It is not incumbent on the employe to search Tor latent defects in machinery or implements furnished him by the employer. He has the right to assume that they are safe and sufficient for the purpose. Porter v: Railroad, 71 Mo. 69 ; Covey v. Railroad, supra.
    
    YI. The evidence fully warranted the finding of the jury. The court properly refused to sustain a demurrer to the evidence, for the evidence fully sustains the ver<dict of the jury.
   Ellison, J.

— The only question presented to us by the appellant is as to the plaintiff’s case on the evidence. A demurrer was interposed at the close of plaintiff’s testimony which was overruled, and of this, defendant complains.

The evidence tended to show that plaintiff was working the lever in propelling the car, under the direction of the section foreman. That he was doing his duty and on an upward stroke of the lever or handle it broke, causing him to fall off and receive the injury. That the handle was made out of an old tie, which had been used in the track and thrown out as being unfit for further use ; that it was worm eaten and brash, and that a reasonable examination would show it not one-fourth strong enough for the purposes for which it was used by defendant. The evidence further tended to show that plaintiff was not present when the handle was made, and was not then in the employment of the company, and that a casual examination of the handle would not discover what sort of one it was, but a reasonable examination would.

This evidence was ample upon which to submit plaintiff ’ s case to the jury. It has been repeatedly held that it is the duty of the master to use reasonable and ordinary care and foresight in procuring appliances and in keeping the same in repair, to the end that the same shall be safe. Not that he is an insurer of their safety, but that he shall make a reasonably diligent effort to have them safe and to keep them so. The servant has a right to rely upon the master performing this duty. So it is held that knowledge on the part of the agents of defendant, who are intrusted with the duty of procuring the machinery and keeping the same in repair, is to be attributed to the defendant.

But defendant contends that though the evidence shows the section foreman made this handle out of the castaway tie, yet there is nothing connecting the defendant with his knowledge, or showing that it was his duty to supply the handle; It is enough to say of this, that defendant seems to have used the handle from October, when it was made, till the following April, when it broke, and that the evidence tends to show that during any of thi time a reasonable inspection would have discovered its defective character. In the case of Covey v. Ry. Co., Sup. Ct. of Mo., it is said: “There is no direct -evidence in this case that the defendant or its agents at any time knew the handle was defective. There is evidence however tending to show that it was made of a bad piece of timber and was defective, and that this would have been discovered by the use of reasonable care and foresight in the construction of the car and its equipments.” See, also, Siela v. Ry. Co., 82 Mo. 435.

The case was properly submitted to the jury for their judgment on the facts, and is, therefore, with the concurrence of the other judges, affirmed.  