Illinois Central Railroad v. Barslow

Mr. Presiding Justice Waterman

delivered the opinion of the Court.

This action being based upon the alleged negligence of the defendant in failing to provide safe and suitable appliances for the use of the plaintiff, the burden of proving such negligence is consequently upon the plaintiff.

An employer is bound, not only to use reasonable care in the selection of machinery and appliances, but also the same care and watchfulness to see that they are kept in proper condition. Wood on Master and Servant, Sec. 329; Union Pacific Ry. Co. v. Jarvi, 53 Fed. Rep. 65; Sack v. Dolese, 35 Ill. App. 636; Same, 137 Ill. 129.

While the case at bar differs from that of Sack v. Dolese, supra, in that it is here shown what the defect was which caused the injury, there is not in the present case any evidence as to when the link in question became defective.

The very small crack in it, being upon the under side of the link, was not discoverable except upon a very careful examination, and for aught that appears might have been caused by the strain put upon the coupling on the day of the accident.

We do not express any opinion as to whether the evidence shows that the defect which was the cause of the accident could have been discovered by the exercise of reasonable care and watchfulness, had it existed for a sufficient period to allow of an inspection, but we do hold that in the absence of any evidence showing any knowledge by appellant of the defect, or that it existed for even an hour before the accident, a cause of action was not established. Ill. Cen. R. R. Co. v. Harris, 53 Ill. App. 592-596.

The master is presumed to have discharged his duty to provide suitable and fit instrumentalities for the servant in the prosecution of the business he is set to do. Wood on Master and Servant, Sec. 346; Hard v. R. R. Co., 33 Vt. 473; Gibson v. R. R. Co., 46 Mo. 163; Potts v. Port Carlisle R. R. Co., 8 W. R. 524.

That the link from which the accident under consideration arose was not a suitable or fit instrumentality is not disputed, but the master is not shown' to have known of this, nor is it made to appear that the defect had existed for such time, or arose under such circumstances as that he is chargeable with notice of its condition. True, it appears that the cars were inspected almost daily, but that the defect was in being when any inspection took place is not shown.

Appellee having failed to show either actual or implied notice to appellant of the defect from which the injury arose, the judgment of the Superior Court is reversed and the cause remanded.