
    John O’Connor, Appellee, v. Illinois Central Railway Company, Appellant.
    i. Master and Servant: defective machinery: knowledge of employer: negligence: pleading. In an action by an employe of a railroad company for damages for injuries sustained in being thrown from a freight car alleged to be so defectively constructed .that it would not turn a curve, an allegation that the plaintiff’s injury was caused wholly by the defendant’s negligently using and permitting to be used tbe car so defectively constructed sufficiently charges negligence on the part of the defendant, although such negligence could, only be proven by showing that the defendant had either actual or constructive knowledge of the defect.
    2. -: -: negligence: evidence. The only evidence that the car complained of by the plaintiff was defective was, that while the same was being moved by pushing the ear ahead of an engine over the defendant’s track it was derailed on a curve. On the other hand it appeared that the ear was carefully examined by the defendant’s car inspector the day before the accident, and by the car inspector and the foreman of the engine house the day after the-accident, and found each time to be in perfect order. It further appeared that the truck used with the car in question was in general use in six states, and is used by many of the leading railroads of the country acceptably. Held, that a verdict for the plaintiff was not. supported by the evidence.
    
      Appeal from, Woodbwry District Cowrt. — Hon. G-. W.. Wakefield, Judge.
    Friday, May 29, 1891.
    This is an action to recover damages for a personal injury. There was a judgment for plaintiff, and the* defendant appeals.
    
    Reversed.
    
      J. F. Dimcombe, for appellant.
    
      J. N. Weaver, for appellee.
   Granger, J.

In January, 1889, the plaintiff was m the employ of the defendant company engaged in switching cars to and from the Union stock yards and the pork and beef packing houses in and about the city. On the fourteenth day of that month the defendant company was moving a Chicago-refrigerator car by pushing the same ahead of an engine from the transfer track of the company over the Union stock-yards track to the Silberhom packing house, when the car was derailed on a curve of the track, and the plaintiff, being on the car, was thrown therefrom, and injured. The allegations of the petition showing the negligence of the defendant are as follows:

“That said refrigerator car on which plaintiff was so riding was so defectively constructed in its trucks and running gear that it would not turn a curve on the defendant’s said railroad tracks, and when at or about the point above mentioned, and being so removed, said car, on account of said defective construction, jumped the track, and became derailed, whereby plaintiff was thrown from the top of said car to the ground with great force and violence, inflicting upon plaintiff serious and permanent injuries,” etc. “That said injury to plaintiff was caused wholly by the defendant’s negligently using and permitting to be used said car so defectively constructed, and through no fault of plaintiff, by reason of all which plaintiff has been damaged to the sum of five thousand dollars, no part of which has been paid.”

After verdict, the defendant moved in arrest of judgment as follows:

“First. As grounds in arrest of judgment the defendant says that the petition in this case is defective and does not show a cause of action, in that it does not state that the defect in the construction of the running gear and trucks of the car from which the plaintiff is alleged to have fallen was known to the defendant, or might have been known to the defendant by the exercise of ordinary care. Second: . The petition does not allege that the defendant had knowledge or notice of the negligence complained of, either actual or constructive.”

A. motion in arrest of judgment is available only when “the facts stated by the petition do not entitle the plaintiff to any relief whatever.” Code, sec. 2650. A correct test of the sufficiency of the petition to entitle the plaintiff to any relief is to admit the facts pleaded, and to determine the law applicable thereto; Applying the test to this case, we have these facts: The refrigerator car was so defective in its running gear that it would not turn a curve on the defendant’s road; that on account of such defective construction it became derailed, and the plaintiff, without fault on his part, was thereby injured; and that the injury was caused by the company negligently using or permitting to be used the car so defectively constructed. The averments are to this effect: That the defendant, by negligently using a defective car, injured the plaintiff without his fault. Under the law, a party is liable for injuries resulting from his negligence to which the other party does not contribute. The plaintiff has in general terms averred negligence in the use of the car. Such negligence could only be proven by showing the knowledge, “actual or constructive,” which the appellant claims should be alleged. The allegation claimed would only make the petition more specific. If stated in the petition, nothing more than negligence would be pleaded. The facts there stated as grounds for the motion go rather to the form or manner of pleading negligence than to its substance or the ultimate fact, and a motion in arrest is not available in such cases. District Township of Coon v. Directors District Township of Providence, 52 Iowa, 287; Edgerly v. Insurance Co., 43 Iowa, 587.

II. It is next urged that the verdict is without support in the evidence. The car in question is one of a series of sixty-three in number; manuiac^ureci by the LaFayette car works for the Chicago Refrigerator Car Company in October, November and December, 1888, and is numbered 11057. It was delivered to the defendant company in December, 1888, and by that company taken to Sioux City, Iowa, and went over the track and around the curve where it was afterwards derailed, loaded at the packing-house, and back over the track to the company’s line, and thence to Chicago, and was again taken to Sioux City on the eleventh of January, 1889. On the thirteenth of January — the day before the accident — the ear was examined by the car inspector for the company, and the car found to be in perfect order. Mr. Swift, the car inspector, says:

“I looked it all over carefully and particularly. I examined the trucks and running gear. I looked at the wheels, and looked at the truck, and all over it, to see that the bolts were all right, and the drawheads,. everything that was in view. * * * The next morning I saw it, — the fifteenth. She was sitting on the sidetrack there, by the engine-house, in the-yard. It was brought back to the yard. I looked it over, and found the side bearing gone on the-bolster. I jacked it up, so I could see the center plates. Eaised the car up off the track, so I could see the center pin. I did it to see if there was anything wrong with the center pin, — whether there was anything in there, — and I always do; and another thing was to get my side bearing on, — to get my bolts in.- I carefully examined these center plates, and the various-parts of these trucks, and put my hand in to see if there was any dirt or stones or pieces.qf iron. These center plates were in plain view after the car was jacked up, and I looked at them. There was nothing the least the matter of them. I examined both trucks and center-plates. I didn’t jack up the other end because it worked all right. The one end that was skewed around was the one that I examined, where the little piece of iron was off the car. Nothing wrong with the truck. Nothing wrong with the running gear, except the loss of this little piece. I tried the wheels. G-auged the-wheels. They were all in perfect order. The gauge is a stick that we have to try wheels with, the same gauge that is used on the tracks. The car had never been there before for repairs. I examined it before. I should judge about a month before. I found it in perfect order, as far as I could see. I made a perfect examination of it at that time. There was nothing the •matter of the running gear or trucks that I could discover.

Cross-examination: I am the car-repairer. I have never had any other experience with any other of these refrigerator cars in Sioux City only in the draw-bar line, or something of that sort. Q. Didn’t you receive orders to send some of them to Waterloo on account of their not keeping track? A. That was afterwards. I examined the car in the yard,' and it was in perfect good condition, as far as I could see. I considered it in first-class. It was in perfect good condition the day before this accident, and it was in perfect good condition the day afterwards. I replaced a side casting. That was all that was wrong about that car, as far as I could see; that was all there was wrong. I jacked this car up in the yard after the accident. Didn’t before the accident. I had no occasion to.”

Mr. Bryant, foreman of the engine-house, also examined the car with Mr. Swift after the accident, and testifies that there was not anything to indicate that it was not in perfect condition. The trucks used with this car are in general use in Illinois, Wisconsin, Iowa, Minnesota, Nebraska and Missouri, and are used by many of the leading railways of the country acceptably. The record is in fact an affirmative showing in favor of that make of cars. It is a significant fact in this case, and of quite controlling importance, that no particular defect has ever been found in the car in question. In this respect this case differs from the generality of this class of cases before us. G-enerally the defect or cause of the accident is known at the time of the trial, — as a defective coupling or hand-piece, a broken axle or wheel, some particular fact to which the accident can be attributed, and tbe fact of negligence in regard thereto determined. Barring tbe fact that tbe car did mount tbe track at tbis particular point on tbe day of tbe accident, and tbe day following, and all tbe evidence shows tbe car to have been in good condition, without defect; and, further, that tbe company bad been diligent to know its condition. Take from tbe record tbe fact of tbe derailments, and nothing would be left to cast a suspicion against tbe actual condition of tbe car or tbe conduct of tbe company to know its condition. If tbe accident bad disclosed a defect in tbe car, that fact might have tended to show that tbe inspector came short of bis duty. But tbe subsequent inspection substantiates tbe former, and tbe car, after tbe accident, so far as an inspection could show, was then in good condition. Hence, tbe simple fact of derailment stands as tbe only evidence of negligence. If that simple fact could, in law, be sufficient to show negligence, it is conclusively overborne by an affirmative showing that tbe car in tbe particular as to which it is alleged to be defective was not so, at least, in a manner that it was ascertainable; and there could be no claim that more was required of defendant than diligence to know if the car was serviceable. That tbe mere happening of tbe derailment or tbe accident would not show negligence, see Baldwin v. Railway Co., 68 Iowa, 37; Case v. Railway Co., 64 Iowa, 762; Gandy v. Railway Co., 30 Iowa, 420. In fact this rule is conceded by tbe appellee. Tbe nearest that tbe appellee comes to an attempt to point out evidence from which a defective truck or running gear could be found is that Swift, tbe car inspector, made report to Bryant, tbe foreman of tbe engine-house, who made a report to tbe master mechanic, as to tbis car after tbe accident. Orders were afterwards received from tbe master mechanic to try tbe gauge” on tbe refrigerator company’s cars, and it was found that some of them varied about a fourth of an inch, and they were marked and sent to "Waterloo», but returned without change. But the car in question was not one of them; and the evidence shows without dispute that the gauge of this car was tried and found correct before and after the accident. The appellee assumes that because of this order to try the gauge of that class of cars there must have been a difference between the report made to the master mechanic and the testimony of Swift and Bryant on the stand, but the assumption is without support, and will not do as a fact on which to base negligence. It is also said that other cars passed over this same track without derailment, which "is true. It is also true that this car on two occasions mounted the track at this particular place, while it was operated both before and after the accident, ón curves and other places, without mishap. The most that can be said for the appellee is that this car, at this particular place, from some unknown cause, became derailed, and caused the injury to the plaintiff. But that is not what the appellee needs. He needs some known facts, having support in the evidence, from which negligence may be found. We think the verdict is without support in the evidence.

Other questions presented it is not important to consider, and the judgment is eeveesed.  