ants wrongfully induced her to perform. Besides, it is averred, in express terms, that she was a delicate, inexperienced girl of tender years. She was therefore not bound to the same rule of care and diligence in avoiding the consequence of the defendants' neglect that would be required of adult persons of ordinary intelligence and discretion. If it should appear upon the trial, as is now claimed by counsel for defendants, that no willful wrong was done by defendants, and that the girl was of sufficient age and capacity to understand the dangers incurred by her in doing the work directed to be done, and that she neglected the duty of self-protection, no recovery could be had by the plaintiff, as the negligence of the girl would be imputed to the father; and if the father consented to the wrongful action of the defendants, or in any way co-operated in producing the injury, it would defeat a recovery in his favor. However, these are matters of defense which do not appear upon the face of the petition, and therefore need no consideration now. We are of opinion that the court erred in sustaining the demurrer, and its judgment will be reversed and the cause remanded for further proceedings.

(All the justices concurring.)

(34 Kan. 326)

ATCHISON, T. & S. F. R. Co. v. Ledbetter.

Filed November 7, 1885.

MASTER AND SERVANT-DEFECT IN MACHINERY-INJURY TO RAILROAD EM

PLOYE.

In an action by a yard switchman against a railroad company in whose employ he had been for injuries alleged to have resulted in consequence of a defect in the draw-bar of a car, or in some of its accompanying appliances, held, that no recovery can be had against the railroad company except by proof of negligence on its part, and that it devolves upon the plaintiff to prove the negligence, and to prove all the facts which constitute or make apparent such negligence; and therefore, where it was not shown that the railroad company had any knowledge of the defect existing in the draw-bar or in some of its accompanying appliances prior to or at the time of the injury, or that such defect had existed for any considerable length of time, nor what was the nature or character of the defect; that it was obvious or manifest, or could have been discovered by the exercise of reasonable care and diligence, or by any of the tests employed by car inspectors; nor that the car had not been properly inspected by the car inspectors at the yard where the injury is alleged to have occurred: held, that no negligence is shown on the part of the railroad company, and that no cause of action against the railroad company has been proved.

Error from Wyandotte county.

This was an action brought in the district court of Wyandotte county on May 31, 1883, by Isaac J. Ledbetter, against the Atchison, Topeka & Santa Fe Railroad Company, to recover damages for personal injuries alleged to have been received by the plaintiff while in the employment of the defendant at Emporia, Kansas, on November 12, 1881. The plaintiff's cause of action is stated in his petition as follows:

"That the plaintiff was, on the twelfth day of November, 1881, and had been for a long time prior thereto, in the employment of said defendant as a

switchman or yard-man; that on the day aforesaid the said plaintiff, while in the due and ordinary discharge of his duty as such switchman or yard-man, and while attempting to couple a moving engine onto a stock car then standing upon the track of defendant in the yard of said defendant at Emporia Junction, in the county of Lyon, in the state of Kansas, was severely and permanently injured; that the said injury was wholly caused by the defective and bad condition of said stock car; that the defendant negligently failed to inspect and ascertain its defective and bad condition prior to that time, and that it had a reasonable opportunity so to do; that the defendant knew that the said stock car was in a defective and bad condition prior to that time, and that it had reasonable opportunity for so knowing; that at the time of the said injury the plaintiff was in the exercise of ordinary care; that the defendant negligently failed to give warning or information to the plaintiff that the said stock car was in a defective and bad condition, and that the plaintiff had no knowledge of its defective and bad condition, or opportunity to ascertain the same."

The plaintiff claimed judgment for $10,000. The answer of the defendant was a general denial. On July 24 to July 29, 1884, a trial was had before the court and a jury, which trial resulted in a verdict and judgment in favor of the plaintiff and against the defendant for $5,000 and costs. The jury also made special findings of fact. The defendant moved for a new trial upon various grounds, which motion was overruled by the court, and on December 4, 1884, the defendant, as plaintiff in error, brought the case to this court for review.

James Hagerman, A. A. Hurd, and Robert Dunlap, for plaintiff in

error.

Waters & Ensminger, for defendant in error.

VALENTINE, J. The principal facts brought into this case by the parties, and upon which the plaintiff's cause of action is to be sustained or defeated, are substantially as follows: During the month of November, 1881, and prior thereto, the plaintiff, Isaac J. Ledbetter, was in the employment of the defendant, the Atchison, Topeka & Santa Fe Railroad Company, as a yard switchman at Emporia, Kansas. At that point the defendant had two yards: one at the junction of the Missouri, Kansas & Texas Railway with the Atchison, Topeka & Santa Fe Railroad, and called the "upper yard," and the other about one mile west from there, and called the "lower yard." There were three car inspectors at these yards, two of whom were to perform their duties in the day-time, and the other to perform his duties. in the night-time, and their principal duties were to inspect cars as they were brought into the yards from other places, and if a car was found to be in such condition as to be unfit for use to mark it "bad order," and have it placed on the repair track for repairs, or sent to the general repair shops at Topeka for such purpose. It was also the duty of the yard switchman to inform the car inspectors of any defects or imperfections which they might discover in any of the cars while performing their work. There was also a physician and surgeon residing at Emporia, near these yards, who was employed by the defend

ant railroad company to attend professionally to any of the defendant's employes who might become disabled or injured while in the defendant's service, free to the employes, and at the defendant's expense. The defendant also had car repairers and many other employes at those two yards. In the afternoon of November 11, 1881, the plaintiff coupled the switch-engine to the west end of a Vandalia stock car which was then standing on a track in the lower yard and contained sheep, and the engine and car were then taken to the stockchute in the upper yard, and there the brakes of the car were set and the car left to be unloaded. On the next morning, November 12, 1881, the plaintiff coupled the same engine to the same end of the same car; the car at the time standing at the same place and in the same condition at which and in which it was left the day before. The car was then removed and placed on a side track. The engine was then taken around to the other end of the car and was backed towards the car, the tender being between the engine and the car, and the plaintiff stood on the foot-board of the tender, and when the tender came near the car he proceeded to couple them together. When the draw-bar, or draft-iron as it is sometimes called, of the tender struck the draw-bar or draft-iron of the car, the draw-bar of the car was pushed under the dead-wood of such car, without shock, collision, or stroke, and the plaintiff was caught sidewise about the hips, between the dead-wood of the car and the iron band beneath the drawbar of the tender, and was pressed or squeezed in such a manner as to cause the injuries complained of. He probably received some slight injuries, but no bones were broken or fractured. The car was not marked out of order or in bad order, or in any other manner, and there is no evidence that it was out of order except the foregoing facts; and what was out of order, defective, or imperfect, if there were any defects or imperfection, no one knows, except from the foregoing facts. The plaintiff said nothing at the time about being squeezed or hurt, or the car being out of order, and the engineer, fireman, an l foreman of the yard gang, who were present at the time, had no knowledge of the same. The plaintiff then got off the foot-board of the tender and sat down upon the side track near by for a few minutes, and then got on the foot-board of the tender again and rode from that place down towards the lower yard to Commercial street, in the city of Emporia, where he left the engine, tender, and car with the engineer, fireman, and foreman, who accompanied him from the upper yard, and walked to his home in Emporia, a distance of three or four blocks. What was afterwards done with the car is not shown. When the plaintiff arrived at his home he laid down until dinner. He examined his person and found some bruises upon his hips. He got up and ate his dinner, and then laid down again until 3 o'clock in the afternoon, when he went back to the yards and worked till night. He worked the rest of the month of November for the defendant, and all the month of December, except the period between Christmas and

New Year's, when he was given a vacation, and all the month of January, and quit work for the defendant in February and went back to his old home in the state of Illinois. Afterwards he returned to Kansas, and, after working for two or three different railroad companies, commenced again on September 17, 1882, to work for the defendant at Emporia, and afterwards worked for the defendant at Argentine, commencing about December 20, 1882. He worked for the defendant. at this place until about April 17, 1883, when he quit work on account of sickness. His sickness was of a malarial character, and he was treated by his physician for malaria, and was benefited. Malarial complaints are common at Argentine, and the plaintiff had suffered from such complaints prior to his coming to Kansas. In May he went to work again for the defendant, but soon quit, and on May 31, 1883, commenced this action.

The plaintiff testified that during all the time from the time when he received the injury at Emporia, on November 12, 1881, down to the time of the trial, he had suffered from the effect of such injury, and that he was often sick and unable to work. But at no time did he consult a physician with regard to such injury, and he was at no time treated by any physician for such injury; but the treatment that he received from the various physicians who at various times prescribed for him was all for malaria, bronchitis, and loss of voice. He did not at any time consult the defendant's physician and surgeon at Emporia. He did not mention the injury to the engineer or fireman who had charge of the switch-engine which was used at the time of the injury, nor to his foreman, nor to any other one of the company's employes at Emporia. In his testimony he almost stated that he mentioned the matter to his foreman, but the jury found against him on this subject. He did not inform the car repairers at Emporia, or make any report that anything was wrong or out of order with regard to the Vandalia stock car from which he states he received the injury, although it was his duty to do so, if in fact the car was out of order. He did not, in fact, at that time, nor for many months afterwards, inform any employe, agent, or officer of the defendant that there was anything wrong concerning such stock car, or that he had received any injury therefrom. He made no claim upon the defendant or any of its officers or agents for damages for the alleged injury until some time in August, 1882, about nine months after the injury is alleged to have occurred. And neither the engineer of the switchengine which was used in making the coupling at the time when the plaintiff is alleged to have been injured, nor any other available witness, ever heard of the injury until many months after the injury is alleged to have occurred. The plaintiff testified that something was wrong or broken about the draw-bar of the car, but he did not know what it was, did not examine to see what it was, and made no effort to ascertain what it was. Indeed, he did not carefully examine the car for any purpose. On the day that the injury is alleged to have

occurred he only saw the two ends and one side of the car to know whether it was even marked "out of order" or "in bar order" or not. The jury rendered a verdict in favor of the plaintiff and against the defendant for $5,000. The defendant then moved for a new trial upon various grounds, among which was the ground "that the said verdict is not sustained by sufficient evidence and is contrary to law." The court overruled the motion for a new trial, and rendered judgment upon the verdict in favor of the plaintiff and against the defendant for $5,000 and costs, and the defendant, as plaintiff in error, now seeks to have this judgment reversed.

In the examination of the questions involved in this case we shall assume that the draw-bar of the Vandalia stock car, or something connected therewith, was out of order; but in what the defects or imperfections consisted, or what were their nature or character, no one can tell, nor even imagine, unless he wanders into the uncertain regions of conjecture and speculation. This indefiniteness and uncertainty, however, can probably make but little difference, if the defects or imperfections themselves can be traced with reasonable directness and certainty to the negligence of the railroad company. We shall also assume that the plaintiff received injury by reason of the imperfect action of the draw-bar and its accompanying appliances. But this assumption is also open to criticism, and to doubts and uncertainties. But assuming that the draw-bar for some reason failed to operate as it should, and that the plaintiff was injured in consequence thereof, do these things make out a cause of action in favor of the plaintiff and against the defendant? We think not. A railroad company is not an insurer of the perfection of any of its machinery, appliances, or instrumentalities used in the operation of its railroad, but is required only to exercise reasonable and ordinary care and diligence to see that all these things are in a reasonably safe condition. In other words, the railroad company is liable to its employes in such cases for negligence only, and this negligence must be shown by the party who asserts the same. The plaintiff claims that the railroad company was guilty of negligence in not having the said Vandalia stock car inspected prior to the time of his attempt to couple the same to the tender; but there is not a particle of evidence tending to show that the car was not inspected prior to that time. It may have been inspected at the lower yard, and it may also have been inspected at the upper yard. The fact that the draw-bar or some of its accompanying appliances were out of order does not prove that the car was not inspected. There was no showing that the defect, whatever it may have been, was obvious or manifest. It may have been latent, hidden, and concealed, undiscovered by the exercise of ordinary care and diligence, undiscoverable even by any possible inspection which the yard inspectors could have resorted to. The draw-bar was in its place. The spring may also have been in its place. So may also all the accompanying appliances. All may have appeared to be in