I. & G. N. & M. P. Ry. v. Kindred

Bonner, J.

Dissenting opinion of I dissent from the conclusion reached by a majority of the court in this case.

The uncontradieted facts show that the deceased, John Kindred, was conductor of the train, and that one of his duties on this character of train was to inspect the same, and any cars found not to be in good order were, if necessary, to be set aside and reported to the proper officer for repairs; that the defect complained of in this case was of a very trivial character; that it was known to nearly, if not all, the other employees on tüe train; that it could have been discov•ered by a very cursory examination; in fact, that it could hardly have escaped the notice of the deceased in the performance of the very act which resulted in his death, and that it could have been easily repaired with appliances at hand.

One of the witnesses testified that he did repair it after the accident, simply by putting on a nut which he found on the train. The very great preponderance of the testimony, including telegrams from the deceased himself, shows that he took charge of the train on the morning preceding that on which the accident happened.

Had the deceased made examination, or simply inquiry even of his co-employees on the train, lie could, in all probability, have found out the defect. If this knowledge was obtained, then the •company, under well settled principles of law, would not be liable under other facts in the case. That it was not obtained was occasioned by a want of proper diligence in the discharge of an express and important duty, and this, upon equally well settled principles, is sufficient to exonerate the company from liability.

The Mad River and Lake Erie R. R. Company v. Barber, 5 Ohio State, 541, is a case very much in point. There the conductor of a freight train, but which, unlike the train in this case, was not generally composed of the same cars under his control, sued for injury resulting from a defective link in a brake-chain, when acting, also, in the capacity of brakeman. It was one of his duties, as conductor, fio inspect his trains.

Held, “That the conductor of a train of railway cars, being the representative of the company in the command and management of the train, and not being under the immediate control and direction of a. superior or supervisory agent, is held to ordinary and, reasonable ■care and diligence, not only in the management of the train, but •also in the due inspection of the cars, machinery and appartus of the train, as to their sufficiency and safety, and if he receives an injury while neglecting that care and diligence required of him in the management of his train, or by means of any defect or insufficiency in the cars, machinery, or apparatus, with a knowledge of which he was running the train, or which could have been known fio him by the exercise of that care and diligence required of him in fihe performance of his duty, or in other words, if his neglect in •either of these particulars contributed as a proximate cause to the injury, he can have no right of action against the company for ■damages.”

In my opinion, the inspection of cars was the first duty to which the deceased should have devoted his attention. Public policy, the preservation of his own life and that of his co-employees, to say nothing of the preservation of the property of the company, required of him great diligence in the performance of his duty, and the court should not relax the diligence of such officers, by giving compensation for injuries received by their own neglect.