Opinion of the Court, per FINCH, J. five times as strong as its breaking weight under expected loads, but was only of about three times that strength. As to other alleged defects—in the yoking of the main braces, so that each I beam acted independently instead of solidly as one; in the insufficiency of the lateral bracing; and the alleged movement or change of position of the braces upon the anchor-blocksthere was much difference of opinion and considerable contradiction in the evidence. Enough has been said to indicate the questions of fact existing in the case, unless it be true that the defendant company was not responsible for any of the alleged defects because it acquired the bridge by purchase, as a completed and to some extent as a tested structure. In other words, the contention is, that a railroad company acquiring by purchase an additional line already built and in operation, of which an existing bridge forms a part, owes no obligation to its employes running trains over such bridge, except to keep it as good as when it was bought, and has a right without negligence to assume the sufficiency of its original plan and construction. The case relied upon for this doctrine is Devlin v. Smith (89 N. Y. 470; 42 Am. Rep. 311), but it has no application for two reasons. Smith, having no knowledge of scaffold-building, employed a builder known to him to be skillful and experienced, and owed to no one a duty of inspection, the proper performance of which would have disclosed the defect. The defendant here bought the bridge of another railroad company, and without any selection or choice of the builder. If Smith had found the scaffold already built and in the ownership of a person not an expert or scaffoldbuilder, and had bought it of such third person without knowing who designed it, or the plan and manner of its construction, and without inspection had sent his men upon it, a very different question would have been presented. And if the scaffold instead of a temporary had been a permanent structure, intended for continuous use through the years, and imposing upon Smith the duty of an inspection by skillful and competent agents, whose proper performance of that duty would have disclosed defects of construction which made it dangerous and unsafe, Opinion of the Court, per FINCH, J. again a different question would have been presented. Assuming as we must what the jury could have found from the evidence, that the bridge when purchased was unsafe and dangerous by reason of defects in its original plan and construction, and which defects were obvious to the eye of a skilled inspector, and easily and surely ascertainable by a structural analysis determining its factor of safety, it was negligence on the part of the defendant to continue its use in the face of such obvious defects without ascertaining their effect upon its strength and capacity. The purchasing company either knew or did not know the facts relating to its original construction. It is probable that they knew them. Their chief engineer, Collins, whose duty it was to inspect this bridge, and who did so, was the engineer of the constructing company. He built the abutments of this very bridge, and in all probability knew that the general plan was dictated by a man busy about every thing else; that its draftsman and actual designer made mistakes and was discharged because of them; that the man who put it up was a carpenter without experience in iron bridges; and that the structure was altered and modified twice before it would bear its own weight. If the defendant company through its chief engineer knew this, it knew enough to be guilty of negligence, if it relied upon such a plan and construction without further investigation, and in sole reliance upon the fact that it had not yet fallen. But if the company did not know it, if it bought the bridge in ignorance of who built it, and the character and safety of its plan, and used and inspected it without even knowing or ascertaining its factor of safety, or the prudence of its design, although warned by the presence of obvious defects, they simply shut their eyes and took the risk on the sole faith of its previous use. Collins is said to have been a competent man. Year after year he examined this bridge, but always on the assumption that his sole duty was to see that every thing was in place and that no signs of weakness were developed by the test of passing trains, and never once to ascertain the safety of its plan and design. The defects pointed out by the evidence were almost all obvious to the eye of a com Opinion of the Court, per FINCH, J. petent examiner. A structural analysis, easily made by such an examiner, would have shown that instead of a factor of safety of six times its breaking weight, as Stone says he intended, it had but half that strength and was far below the ordinary standard of safety. The learned counsel for the appellant insists that the defendant did employ suitable and competent persons to inspect the bridge, who did make the usual and customary examinations, and that there is no dispute about that in the evidence. But it is plain that the inspection described in the proofs as customary is that made by a company which has built its own bridges. In such case it already knows the plan and mode of construction, and is already responsible for the lack of reasonable care in either the design or its execution. The subsequent inspection is directed only to its perfect repair, and to indications of weakness. But where the company does not know either the safety of the plan or the prudence of the construction because it has purchased it completed, and in use, and knows nothing of the skill or want of skill of the builder, an inspection which takes no heed of that inquiry when defects are obvious, and lack of safety is indicated and may be easily ascertained, is not sufficient. The employer must exercise reasonable care in furnishing the servant with the means and implements of his service. That the master does not do when he buys an unsafe and defective bridge, whose obvious deficiencies give warning of possible danger, and sends his servants upon it without inquiry as to the skill of its construction or safety of its design. The servant is entitled to that care whether the master builds the bridge or buys it. The risk and the injury are the same in either case. Of course the test of actual, previous use goes for something. It might justify a continuance of that use until a competent inspection could reasonably be made, but would not justify a neglect when it was made to observe and remedy obvious defects and elements of danger, because existing in the original plan, and an omission to learn by a well-understood process whether in view of its apparent defects it had the ordinary surplus of strength. Upon railroad bridges, every Statement of case. day and almost every hour, the lives of passengers and of employes are trusted. It is not requiring too much to insist that, whether built or purchased, the company shall take reasonable care to know or ascertain the safety of their design and construction, and shall be charged with knowledge of defects which a competent examination would have disclosed. open It is apparent, therefore, that in this case there were ques- All concur, except ANDREWS, J., who took no part. COTTON W. BEAN, Respondent, v. LAURENT J. TONNELE, Appel lant. Where an action was brought against the maker, upon a promissory note Also held, that the error was not cured, or the objection waived, by the (Argued December 7, 1883; decided January 15, 1884.) 94 381 119 610 94 381 125 744 94 381 139 468 Statement of case. APPEAL from judgment of the General Term of the City Court of Brooklyn, entered upon an order made April 6, 1882, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury. The nature of the action and the material facts are stated in the opinion. C. W. Pleasants for appellant. The burden of proof is upon the plaintiff to show that the note in controversy has not been paid, as payment may be presumed from lapse of time. (Flag v. Ruden, 1 Bradf. 195; Jackson v. Sackett, 7 Wend. 94; Barrv. Williams, 6 Pick. 187; Oswald v. Lugh, 1 T. R. 271; 3 Starkie on Ev. 823; Cooper v. Turner, 2 Stark. 497; Cent. B'k of Troy v. Haydon, 48 N. Y. 260; Lyon v. Odell, 65 id. 28; Angell on Limitations, 10, 80, 96.) The circumstances of the debtor and creditor are evidence to increase or rebut. the presumption so created. (Ross v. Darby, 4 Munf. 428; Gratham v. Canaan, 38 N. II. 268-270.) The fact that defendant was of sufficient pecuniary ability to pay its obligations raises a presumption that the note has been paid. (Miller v. Smith's Ex'rs, 16 Wend. 425; Garner v. Sandford, 2 Sandf. 440.) Waiting until the death of Deegan before suits brought increases the presumption. (Wharton on Evidence, § 1363.) Twenty years neglect of collection is a sufficient period to ground the presumption of payment of a bond. (Rogers v. Judd, 5 Vt. 236.) The residence in New Jersey does not rebut the presumption. (Keline v. Keline, 20 Penn. St. 503.) As under the Revised Statutes, and the Code of Civil Procedure, $376, judgments are conclusively presumed to be paid after twenty years, therefore a fortiori of the note in suit is conclusively presumed to have been paid. (Ross v. Darby, 4 Munf. 428; Malloy v. Vanderbilt, 4 Abb. N. C. 127.) When the statements of a witness are grossly improbable, or he has an interest in the question at issue, courts and juries are not bound to blindly accept the statements of such witness, but may exercise their judgment. (Elwood v. W. U. Tel. Co., 45 N. Y. 549.) |