MCDONALD v. MICHIGAN CENT. R. Co. (Supreme Court of Michigan, March 6, 1903.) Fellow Servants.* Car inspectors and repairers are not fellow servants of a conductor of a train, who was injured by reason of their negligence in repairing a brake chain, but represent the railroad company in the performance of its duty to furnish and maintain its cars in a reasonably safe condition. Injury to Brakeman-Contributory Negligence-Inspection. Plaintiff, a freight conductor, testified that before he started his train he tried the brakes at each end of the rear car in the usual manner, and that they worked properly. The brake chain, however, below the platform of the car had been broken and bound together with hay wire, and as plaintiff attempted to set the brake after the train had passed the station at which defendant maintained car inspectors and repairers, who inspected the car, the wire gave way, and plaintiff was thrown under the wheels of the train: held, that a rule requiring conductors to know that their trains are provided with everything necessary to enable them to comply with the regulations of the road, and that there is a reliable brake on the rear car, did not require of plaintiff a more minute inspection than he had given the brake in question. Error to Circuit Court, Gladwin County; Nelson Sharpe, Judge. Action by Joseph D. McDonald against the Michigan Central Railroad Company. From a judgment in favor of plaintiff, defendant brings error. Affirmed. O. E. Butterfield (Henry Russel, of counsel), for appellant. De Vere Hall, for appellee, cited the following cases: Georgia Railroad Co. v. Ellison, 87 Ga. 700, 13 S. E. 809; Sadowski v. Car Co., 84 Mich. 100, 47 N. W. 598; Ashman v. Railroad Co., 90 Mich. 571, 51 N. W. 645; Roux v. Lumber Co., 94 Mich. 615, 54 N. W. 492; Balhoff v. Railroad Co., 106 Mich. 613, 65 N. W. 592; Gardner v. Railroad Co., 150 U. S. 360, 14 Sup. Ct. 140, 37 L. Ed. 1107; Quincy Mining Co. v. Kitts, 42 Mich. 39, 3 N. W. 240; Maltibe v. Belden (N. Y.) 60 N. E. 645, 54 L. R. A. 56-59; Murray v. Railroad Co., I McMul. 385, 36 Am. Dec. 268; Farwell v. Railroad Co., 4 Metc. (Mass.) 49, 38 Am. Dec. 339; Holden v. Railroad Co., 129. Mass. 269, 37 Am. Rep. 343; King v. Railroad Corp., 9 Cush. 112; Holden v. Fitchburg, 129 Mass. 268, 37 Am. Rep. 343; Ford v. Fitchburg Railroad Co., 110 Mass. 240, 14 Am. Rep. 598; Hough v. Railway Co., 100 U. S. 213, 25 L. Ed. 612; Flike v. Boston & Baltimore R. R. Co., 53 N. Y. 549, 13 Am. Rep. 545; Johnson v. Boston Tow-Boat Co., 135 Mass. 215. 46 Am. Rep. 458; Northern P. R. R. Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, 29 L. Ed. 755; New England R. R. Co. v. Conroy, 175 U. S. 323, 20 Sup. Ct. 85, 44 L. Ed. 181; *See foot-note appended to Fulton v. Bullard (C. C. A.), 14 Am. & Eng. R. Cas., N. S., 547. McDonald v. Michigan Cent. R. Co Morton v. Railroad Co., 81 Mich. 431, 46 N. W. 111; Railroad Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184, 28 L. Ed. 787; Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772; McDonald v. The Michigan Central R. Co., 108 Mich. 11, 65 N. W. 597; Swoboda v. Ward, 40 Mich. 420; Railroad Co. v. Gildersleeve, 33 Mich. 133; Smith v. Potter, 46 Mich. 258, 9 N. W. 273, 41 Am. Rep. 161: Samuelson v. Iron Mining Co., 49 Mich. 172, 13 N. W. 499, 43 Am. Rep. 456; Brewer v. F. & P. Ry. Co., 56 Mich. 627, 23 N. W. 440; Smith v. Car Works, 60 Mich. 501, 27 N. W. 662, 1 Am. St. Rep. 542; Hewitt v. F. & P. M. R. Co., 67 Mich. 66, 34 N. W. 659; Peterson v. C. & N. W. R. Co., 67 Mich. 109, 34 N. W. 360, 11 Am. St. Rep. 564; Illick v. F. & P. M. R. Co., 67 Mich. 638, 35 N. W. 708; Adams v. Iron Cliffs Co., 78 Mich. 289, 44 N. W. 270, 18 Am. St. Rep. 441; Van Dusen v. Letellier, 78 Mich. 504, 44 N. W. 572; Hunn v. Railroad Co., 78 Mich. 517, 44 N. W. 502, 7 L. R. A. 500; Morton v. B. D. C. & A. R. R. Co., 81 Mich. 423, 46 N. W. 111; Roux v. Lumber Co., 85 Mich. 525, 48 N. W. 1092, 13 L. R. A. 728, 24 Am. St. Rep. 102; Lee v. M. C. R. R. Co., 87 Mich. 574, 49 N. W. 909; Irvine v. F. & P. M. R. R. Co., 89 Mich. 416, 50 N. W. 1008; Dewey v. D. G. T. & M. R. R. Co., 97 Mich. 343, 52 N. W. 942, 56 N. W. 756, 16 L. R. A. 342, 22 L. R. A. 292, 37 Am. St. Rep. 348; Jarman v. C. & G. T. R. R. Co., 98 Mich. 138, 57 N. W. 32; Balhoff v. M. C. R. R. Co., 106 Mich. 612, 65 N. W. 592; Anderson v. M. C. R. R. Co., 107 Mich. 591, 65 N. W. 585; Mc Donald v. M. C. R. R. Co., 108 Mich. 11, 65 N. W. 597; Woods v. C. & G. T. R. Co., 108 Mich. 396, 66 N. W. 328; Shadford v. A. A. Street Ry. Co., III Mich. 394, 69 N. W. 661; Lellis v. M. C. R. R. Co. and A. A. R. R. Co., 124 Mich. 39, 82 N. W. 828; Mann v. L. S. & M. S. R. Co., 124 Mich. 644, 83 N. W. 596; Johnson v. Spear, 76 Mich. 139; Tangley v. Wilson, 87 Mich. 453; Rowley v. Calliau, 90 Mich. 31, 42 N. W. 1092, 15 Am. St. Rep. 298; Wachsmuth v. Electric Co., 118 Mich. 275, 76 N. W. 497; Noble v. Bessemer Co. (Mich.) 86 N. W. 520, 54 L. R. A. 456; Miller v. C. & G. T. Railway Co., 90 Mich. 230, 51 N. W. 370; Miller v. M. C. Railroad Co., 123 Mich. 374, 82 N. W. 58; Fones v. Phillips, 39 Ark. 17, 43 Am. Rep. 264; Daves v. Southern Pac. R. R. Co., 98 Cal. 20, 32 Pac. 708, 35 Am. St. Rep. 133; Denver T. Co. v. Crumbaugh, 23 Colo. 363, 48 Pac. 503; McElligott v. Randolph, 61 Conn. 157, 22 Atl. 1094, 29 Am. St. Rep. 181; B. & P. R. R. Co. v. Elliott, 9 App. D. C. 341; C. & E. I. R. R. Co. v. Kneirim, 152 Ill. 458, 39 N. E. 324, 43 Am. St. Rep. 259; C. H. & D. R. R. Co. v. McMullen, 117 Ind. 439, 20 N. E. 287, 10 Am. St. Rep. 67; Brann v. C. R. I. & P. R. R. Co., 53 Iowa, 595, 6 N. W. 5, 36 Am. Rep. 243; A. T. & S. F. R. Co. v. Moore, 29 Kan. 644; Shanny v. Androscoggin Mills, 66 Me. 420; Tierney v. M. & St. L. R. Co., 33 Minn. 311, 23 N. W. 229, 53 Am. Rep. 35; Coontz v. M. P. R. Co., 121 Mo. 652, 26 S. W. 661; C. 7 RR R-19 McDonald v. Michigan Cent. R. Co B. & Q. v. Kellogg, 54 Neb. 127, 74 N. W. 454; Jaques v. Manufacturing Co., 66 N. H. 482, 22 Atl. 552, 13 L. R. A. 824; Flike v. B. & A. R. Co., 53 N. Y. 549, 13 Am. Rep. 545; Chesson v. Lumber Co., 118 N. C. 59, 23 S. E. 925; Cameron v. G. N. R. Co., 8 N. D. 124, 77 N. W. 1016; Anderson v. Bennett, 16 Or. 515, 19 Pac. 765, 8 Am. St. Rep. 311; Mulvey v. Locomotive Works, 14 R. I. 204; Carter v. Oliver Oil Co., 34 S. C. 211, 133 S. E. 419, 27 Am. St. Rep. 815; H. & T. C. R. R. Co. v. Marcellus, 59 Tex. 334; Davis v. R. R. Co., 55 Vt. 84, 45 Am. Rep. 590; Moon's Adm'r v. A. R. R. Co., 78 Va. 745, 49 Am. Rep. 401; Ogle v. Jones, 16 Wash. 319, 47 Pac. 747; Cooper v. P., C. & St. L. R. Co., 24 W. Va. 37; Brabbits v. C. & N. W. R. Co., 38 Wis. 289. MOORE, J. The plaintiff recovered a judgment against the defendant for injuries received by him while in its employ. The case is brought here by writ of error. The plaintiff was in charge of a freight train running from Grayling to Mackinaw City. Grayling is about half way between Bay City and Mackinaw City. The defendant maintains a car repair shop at Bay City. At Grayling it has a train master and four inspectors or repairers. At Mackinaw City it has one car inspector or repairer. The inspectors or repairers at Mackinaw City and Crayling inspect the cars, and repair such broken or defective parts as they are able to with the appliances at hand, which are not sufficient to enable them to do any welding. If the repairs are of such a character as to require it the cars are sent to the shop at Bay City. While in charge of his train in September, 1901, as it approached the third or fourth station north from Grayling, the plaintiff attempted to set the brake upon the way car. Something gave way. The plaintiff was thrown between the way car and the car next front of it. The wheels of the way car passed over him, injuring him severely. An examination after the injury showed that the chain attached to the lower part of the brake mast had before that parted and been repaired by using a wire which was supposed to have been hay wire. This wire gave way under the strain, and hence the accident. This accident occurred upon the second round trip of the way car after it left the repair shop at Bay City. It does not appear when or by whom the hay wire was used to repair the chain. It is claimed by defendant the car was in good repair when it left the shop at Bay City. This is not admitted by plaintiff. Mr. Trumley, the inspector at Grayling, who claims he inspected the car at that place, was a witness on the part of the defendant, and disclaimed all knowledge of the wire. The inspector from Mackinaw City was not produced as a witness. Counsel for defendant says there are two questions presented by the record: (1) The liability of a railroad company to a freight conductor injured by the negligence of a car inspector, whose duty it was to inspect and repair the way car. (2) The McDonald v. Michigan Cent. R. Co right of such a conductor to recover for injuries resulting from an unreliable brake upon a way car, when, by a rule of the company, he was "required to know that there was a reliable brake" on the car before making use of it. As to the first of these questions, the position of the defendant is shown by the following statements taken from the brief of counsel: "The duty of the company is: (1) To provide a reasonably safe place and reasonably safe appliances. (2) To use reasonable care to maintain place and appliances in a reasonably safe condition." It is said the car was reasonably safe when it left the shop at Bay City. In regard to the duty of the company to maintain it in a reasonably safe condition, it is said: "It performs the duty by employing a competent servant to inspect and repair defects when they appear; and, before it can be held liable for injuries resulting from defects arising in the course of operation, it must have notice, either actual or constructive, that the defect exists, or that the servant is not performing the work assigned to him with reasonable care. In other words, there must be evidence that the master is not exercising reasonable supervision over his servants to see that they perform their work with reasonable care. There is no delegation of duty. It is performance. It is an exercise of reasonable care to maintain the appliance in a reasonably safe condition." Again, "The company furnishes this way car to its Grayling-Mackinaw division. It has a number of employees who are to make use of the car, some to inspect it, some to ride upon it, and some to set its brakes. The man who is to inspect it fails in his work. The company has no means of knowing what moment an employee, hitherto trusty and reliable, will prove deficient. But it has exercised reasonable care to preserve the reasonably safe condition of this way car while it is in use by the employees of that division, by employing competent men to inspect the car at the end of every trip. Unless the plaintiff is able to show that the company knew of the existence of the defect, or that it had existed for a sufficient length of time to impose upon the company the duty to know, he cannot recover. This is the full measure of the defendant's duty to the plaintiff in this case, and we submit it is not shown to have neglected that duty." Counsel cite cases which it is claimed sustain this contention. It is the claim of plaintiff the duty resting on defendant is not discharged by furnishing safe cars in the first instance; that such duty of maintenance is a continuing one, which it discharges through the employment of inspectors and repairers, and that the latter must exercise reasonable watchfulness and care to maintain such cars in a reasonably safe condition; and that defendant is liable for any omission of duty in that regard on the part of such inspectors or repairers, where, as a proximate cause of such omission, injury results McDonald v. Michigan Cent. R. Co to plaintiff, as one using such car. It must be conceded the authorities are not agreed, but the principles involved are not new in this state. The difficulty lies in the application of them to a given case. In Morton v. Railroad Company, 81 Mich. 423, 46 N. W. 111, Justice Cahill, speaking for the court, said: "The rule may now be considered settled in this state, as well as in most of the states, not only that a master is bound to use all reasonable care in providing safe tools and appliances for the use of workmen in his employ, but that this is a duty which cannot be delegated to another so as to relieve him from personal responsibility. Johnson v. Spear, 76 Mich. 139 [42 N. W. 1092, 15 Am. St. Rep. 298]; Van Dusen v. Letellier, 78 Mich. 492 [44 N. W. 572]; Brown v. Gilchrist, 80Mich. 56 [45 N. W. 82, 20 Am. St. Rep. 496]. The duty of the master to his employee in this respect is clearly and well stated by Mr. Justice Morse in Van Dusen v. Letellier, just cited, at page 502, 78 Mich. [and page 575, 44 N. W.]: 'It is well settled by all the authorities that the master must provide his servant with a safe place to work in, and furnish him with suitable machinery and appliances with which to perform such work, and it is his duty to keep such machiney and appliances in good repair. If he cannot do this himself personally, he must provide some other person to take his place. in this respect; and the person to whom the master's duty is thus delegated no matter what his rank or grade; no matter by what name he be designated-cannot be a servant in the sense or under the rule applicable to injuries occasioned by fellow servants. Such person is an agent, and the rules of law applicable to principal and agent must apply.' This doctrine is also clearly stated by Justice Field in Railroad Co. v. Herbert, 116 U. S. 650 [6 Sup. Ct. 594, 29 L. Ed. 755], where the whole question is carefully discussed, and numerous authorities in New York, Massachusetts, Maine, and other states to the same effect discussed and approved. Four of the judges dissented from his opinion, upon the ground that the case was governed by a special statute in Dakota, but expressed no opinion as to the common-law liability of the defendant under the circumstances of that case. In Shear. & R. Neg. (4th Ed.) §§ 194. 204, this question is discussed and stated as follows: 'Sec. 194. The master also personally owes to his servants the duty of using ordinary care and diligence to provide for their use in his service sound and safe materials, instruments, and accommodations, and such appliances as are reasonably calculated to insure their safety. He is also personally bound to inspect and examine all these things from time to time, and to use ordinary care and skill to discover and repair defects in them.' 'Sec. 204. None of the duties which have been previously stated as devolving upon the master personally can be by him delegated to any agent, so as to relieve him from personal responsibility. He may, and often must, delegate the per |