Harvey v. Sullens. valid will. Tomkins v. Tomkins, 1 Bailey, 92; Coleman v. Robertson, 17 Ala. 84. But this criterion cannot be regarded as a test in every particular case. However, I am inclined to the opinion that, under the circumstances here presented, the instruction was correct, and should have been given. The fifth instruction told the jury that if they believed, from the evidence in the cause, that the defendant, Sullens, was the principal devisee in the paper propounded by him as the last will and testament of Elizabeth Sip; that he wrote it himself, requested the subscribing witnesses to subscribe their names to it as witnesses, and further requested one of said subscribing witnesses, who was the only witness that knew any thing about the contents of said paper, to keep it a secret until after the death of Mrs. Sip, then they were warranted in considering such evidence as tending to prove that Sullens procured the said Sip, by fraud and undue influence, to sign her mark to the said paper. The instruction is unexceptionable, and its merits have been sufficiently discussed in a prior part of this opinion. The sixth instruction asked, told the jury that undue influence was alone sufficient, if proved to their satisfaction, to impeach and set aside a will under it; and that, as a matter of law, if they were satisfied from the evidence, when taken as a whole, that the paper propounded by Sullens would not have been made by the said Sip and signed with her mark as her last will and testament but for the influence exercised over her mind and will by Sullens, then they should find that it was procured from the said Sip by undue influence, and that the same was not her last will. The seventh instruction told the jury that if they found from the evidence in the cause that the testatrix, Sip, signed the paper writing propounded as her last will and testament, and that she was coerced to do so by force, fraud or deceit practiced upon her by Sullens and another or others in his interest and acting at his request, then the paper writing was not the last will and testament of the deceased Sip. We see no valid objection to either of the foregoing instructions. and think they should have been given. For the error in refusing the instructions, we are of the opinion that the judgment of the general term was correct, and it will therefore be affirmed and the cause remanded for a new trial in conformity with this opinion. The other judges concur. Gibson v. The Pacific Railroad Company. GIBSON V. THE PACIFIC RAILROAD COMPANY, appellant. (46 Mo. 163.) Master and servant - Liability of master for defective machinery. The legal implication is, that the employer will adopt suitable instruments and means with which to carry on his business, and where injuries to serv ants or workmen happen by reason of improper and defective machinery and appliances used in the prosecution of the work, the employer is liable, provided he knew or might have known, by the exercise of reasonable care, that the apparatus was unsafe. THIS was an action for damages brought by the respondent, an employee of the appellant, a railroad company, against the company, on account of injuries received through the negligence and carelessness of the company in using upon its road defective and dangerous machinery. The respondent was a brakeman on the road, and, as such, it was his duty to assist in coupling cars to form a train, and the case shows that he was a careful and prudent man. While acting under orders of the conductor, the train was backing on a switch to take on an additional car, and, while engaged in inserting the link in the drawhead, the cars came so closely together that in withdrawing his hand it was caught between the deadwoods or buffers, and smashed so that he lost three fingers. There was evidence going to show that the officers of the road, and the master mechanic who had charge of the road and repair shops, were skillful and competent men, but it most clearly appears that the coupling apparatus as used on the cars which the respondent was coupling was dangerous and defective, and that the company was engaged in altering the cars in which a like defect existed, to make them conform to a better standard and consist with greater safety. Judgment was given for the respondent in the court below, and the case is appealed here. The objections are to the action of the circuit court in giving and refusing instructions. For the respondent the court gave two instructions. The first was as follows: "If the jury find from the evidence in this case that the apparatus used for coupling the cars by which the plaintiff was injured, or either of them, from its make and construction, was unsafe, and the defendant knew thereof, or might have known thereof by the exercise of reasonable care and diligence, they are instructed that the VOL. II.-63 Gibson v. The Pacific Railroad Company. defendant is liable to plaintiff for any injuries he has received in consequence of such defect in the make and construction of such apparatus, after it was known or ought to have been known by defendant, if they further believe that plaintiff was exercising ordinary care and prudence at the time he received the injury, and did not know of the defect in said apparatus, and that the same was not due to the carelessness of any fellow-servant of the plaintiff." The second instruction related to the measure of damages, and no point is made upon it in this court. The appellant asked five instructions, three of which were given and two refused. The following were given: "1. Although the car by which the plaintiff was injured was defective by having too short a spring, yet if the directors and superintendent of said railroad were ignorant of the defect of said car, and used due care and diligence in procuring its cars, and selecting careful and competent servants to construct and procure said cars, then the defendant is not liable. "2. If the Pacific railroad selected competent and skillful subordinates and servants to supervise, inspect, regulate and control its freight cars while running on its road, and used due care in constructing and procuring said cars, then the plaintiff, being a servant employed on said road, cannot recover in this action. "3. The plaintiff, as a servant in the employment of defendant, assumed all the risks belonging to the employment he undertook; if, therefore, the plaintiff was injured by and through the negligence of another fellow-servant, or person employed on said road, then the plaintiff cannot recover." The following are the instructions of the appellant refused: "4. If the Pacific railroad, the defendant in this cause, selected competent and skillful subordinates and servants to supervise, inspect, regulate and control its freight cars while running on the road, and if any defect in the car by which the injury happened was unknown to the board of directors representing the company, then the plaintiff cannot recover. "5. The plaintiff, as a servant in the employ of the defendant, assumed all the risks belonging to the employment he undertook; if, therefore, the plaintiff was injured by and through the negligence of another fellow-servant in the employ of defendant, by means of the negligence of such fellow-servant in sending out or using a car with a spring in the drawhead defective by being too short, and if Gibson v. The Pacific Railroad Company. such defect was unknown to the board of directors of defendant, then the plaintiff cannot recover in this action." Whittlesey, for appellant. Terry, Stewart & Whiting, for respondents. WAGNER, J. The principles of law which must govern in this case are not to be confounded with the rule which has so often been announced and adjudged, that a servant of a corporation who has been injured by the negligence, misfeasance and misconduct of his fellow-servant can maintain no action against the master for such injury, unless the servant by whose negligence or misconduct the injury was occasioned is not possessed of ordinary skill and capacity in the business intrusted to him, and the employment of such incompetent servant is attributable to the want of ordinary care on the part of the master. McDermott v. Pacific R. R. Co., 30 Mo. 115; Rohback v. Pacific R. R. Co., 43 id. 187. A workman or servant, on entering upon any employment, is supposed to know and to assume the risk naturally incident thereto; if he is to work in conjunction with others, he must know that the carelessness or negligence of one of his fellow-servants may be productive of injury to himself; and, besides this, what is more material, as affecting his right to look to his employer for damages for such injuries, he knows, or ought to know, that no amount of care or diligence by his master or employer can, by any possibility, prevent the want of due care and caution in his fellow-servants, although they may have been reasonably fit for the service in which they are engaged. It is neither unjust nor unreasonable that consequences which the servant or workman must have foreseen on entering into an employment, and which due care on the part of the employer or master could in no way prevent, should not be visited on the latter. But it is otherwise where injuries to servants and workmen happen, by reason of improper and defective machinery and appliances used in the prosecution of a work. The use of those they could not foresee. The legal implication is, that the employer will adopt suitable instruments and means with which to carry on his business. These he can provide and maintain by the use of suitable care and foresight; and, if he fails to do so, he is guilty of a breach of duty under Gibson v. The Pacific Railroad Company. his contract, for the consequences of which, in justice and sound reason, he ought to be responsible. Snow v. Housatonic R. R. Co., 8 Allen, 441, per BIGELOW, C. J.; Cayzer v. Taylor, 10 Gray, 274; Seaver v. Boston & Maine R. R., 14 id. 466. Any other rule would be productive of the greatest injustice and wrong. The servant has no control over the matter. He acts in subordination. He relies wholly on the judgment of the masters, that suitable machinery and the needed requirements are supplied. He has not the means nor the opportunity of knowing whether those furnished may be safe. His attention is exclusively due to the peculiar duties incident to his branch of the employment. He assumes the risk, more or less hazardous, of the service in which he is engaged; but he has a right to presume that all proper attention shall be given to his safety, and that he shall not be carelessly and needlessly exposed to risks not necessarily resulting from his occupation, and which might be prevented by ordinary care and precaution on the part of his employer. In England, where the principle has been so firmly established, ever since the decision in Priestly v. Fowler, that a servant cannot recover of his employer for the negligence or carelessness of a fellow-servant, the courts have universally held that the master will be liable for ordinary neglect in the use of defective machinery or apparatus from whence injury results. Upon this ground the English, the Scotch and the American law all concur. In Patterson v. Wallace, 1 McQueen, 748, Lord CRANWORTH says: "I believe, by the law of England, just as by the law of Scotland, in the actual state of the case with which we have to deal here, a master employing servants upon any work, particularly a dangerous work, is bound to take care that he does not induce them to work under the notion that they are working with good and sufficient tackle, while he is employing improper tackle, and, being guilty of negligence, his negligence occasions loss to them." The same view of the law was taken by Lord BROUGHAM in that case. The case of Marshall v. Stewart, 33 Eng. L. & Eq. 1, was an appeal heard in the house of lords, from a judgment of the court of sessions in Scotland, in an action by the representatives of a miner killed by injuries arising from the shaft of the pit being in an unsafe state, owing to the negligence of the defendant, his employer. The law of Scotland was, throughout the case, treated as the same with the law of England. The servant, in that case, was killed |