International & Great Northern Railroad v. Doyle , 49 Tex. 190 ( 1878 )

Roberts, Chide Justice.

The errors assigned are, that the court erred in overruling the exceptions to the petition, and that the verdict of the jury was not supported by the evidence, and was contrary to the charge of the court.

In considering the first assignment of error, the following general propositions may be announced, in determining .the sufficiency of the petition:

That it is the duty of the master to furnish and maintain implements and machinery reasonably suitable to perform the work which the servant is required to do in the discharge of his duty under such employment. (Houston and Texas Central Railway Co. v. Dunham, just decided.)

The degree of care and diligence with which this should be done, should be proportioned to the amount of hazard which may reasonably be anticipated as consequent upon-its neglect, considering the work to be performed. (1 Redfield, Law of Railways, sec. 131, p. 547.)

When the servant accepts service, upon being furnished with machinery capable of doing the work required of him, which is ostensibly defective in some particular, by which it is obviously more dangerous than if it were complete and fully suitable, the servant has assumed the increased risk which may reasonably be anticipated from the defect, and no more; and if the defect rendered its use more hazardous than could reasonably have been discoverable by the use of ordinary care, then the master may be in default in the discharge of his duty, and may he liable for an injury produced by such defect, in a manner not anticipated. (Snow v. Housatonic R. R. Co., 8 Allen, 444; Sherman & Redfield on Negligence, see. 95, p. 111.)

These general propositions may be subject to qualification by other facts, which it is not necessary to notice in reference to the facts of this case.

To apply these propositions: The petition shows that the company furnished the employés a hand-car, not of the most usual or of the most approved construction, which was sufficient to enable them to perform their work by the use of it, although it might have (been more dangerous to those who used it, than if it had been worked with levers instead of with cranks. It showed also that it had an ostensible defect, by a substituted handle to one of the cranks, that must have been known to any one who worked with said handle in moving the hand-car. The obvious hazard in the use of said handle, over and above that of the handle which had been lost, and for which it had been substituted, which might have been readily anticipated, was, that in turning in the hand, and being eight-sided, and only three-fourths of an inch in size, the hands would be bruised or chafed, which may have rendered it proper, if not necessary, to use gloves, if they could he procured, to prevent that injury.

The company may not have been bound to the highest degree of even ordinary care in having the handle repaired and restored as it was originally, because the danger in moving a hand-car would ordinarily not be great, and the injury to the hands was all that would ordinarily have been expected! from the use of the substituted handle.

That was the risk which the employé had taken and assumed by accepting service with machinery whose ostensible defect was well calculated to produce that injury.

This brings us to the gist of the matter, which is,—Was the plaintiff justified in using the gloves to prevent the injury to his hands; and if so, was there, by their use, in connection with such a defective handle in such a structure, an increased hazard, which he was not apprised of, and could not have known by reasonable care and attention, and had not been informed of by those who controlled him in his employment ?

The petition contains, in narrative form, a full account of the machinery of the hand-car, and its defect, and of the manner in which the injury was inflicted; from which it is evident that the injury to the hand was caused by the glove used in holding the handle while turning the crank. If the glove had not been used, the hand might have been lacerated, but the thumb could not have been torn off. The glove was no part of the hand-car; nor is it alleged that the glove was furnished by the company, to be used by the employés in working the crank, to make good the defect in the handle. It may be a fact, that the shape and size of the handle, as well as its being fixed, greatly increased the danger when the gloves were used; and therefore the reasonableness and propriety of their use become a material fact, which should be put in issue, to be determined by the jury under the direction of the court.

It would, therefore, have been proper for the petition to have stated, in addition to what was stated, that the use of the gloves by the plaintiff was reasonable and proper to relieve himself from the injury to his hands consequent upon the defect of the substituted handle; and that when so used the defect in the handle, from its size, shape, and fixedness, and the structure of the hand-car, constituted it a dangerous machine, to an extent of hazard in the working of it. beyond that which wasv apparent with ordinary care and attention, of which he was ignorant; and that thereby he was injured. These are distinct facts, upon which his right of action depended, as may be deduced from the facts that are stated in the petition. If they had been alleged, and put in issue by the general denial, the evidence, as well as the charge of the court, should have had a direct reference to them, as the important matters in issue between, and contested by, the parties.

If, on the trial, it had been shown that the use of the gloves was not reasonable and proper,-or that thereby the danger of the machine with its defects was not increased, or should have been known by, reasonable care and attention, or that the injury occurred by his own carelessness in using them, his right of action might have been defeated. It might not have been necessary to have been thus minute in the allegations of its being an unsafe or dangerous machine, but, having detailed facts showing that the injury was caused proximately by his use of the gloves, which were no part of the hand-car, the petition should then have gone further, and accounted, by. direct averments, for the use of the gloves.

What has already been said will suffice to show, in reference to the other assignments of error, that the case was not tried upon its true merits, either in its facts or in the law applicable to them. It is plain that the verdict was contrary to the charge of the court; for, in each of the items of charge, the jury were told, in effect, that the plaintiff could not recover if he knew of the defect, or could have discovéred it by ordinary care and attention. He could not help knowing of the defect in the handle, and the general structure of the hand-car.

It was not alleged in the petition that he did not know of the defect of the handle, or of any other detect; nor was it put in issue, except by the special plea of the defendant. The allegation in the petition, was that plaintiff was ignorant of the risk he was running in turning the crank with the substitutecl handle, under the direction of the section foreman; and that he was ignorant that the hand-car was dangerous by reason of the handle being so fixed and arranged, and that he was wholly ignorant of any danger incurred by using the hand-car. Thus, by this mode of expression, it was taken for granted that the operation performed was dangerous, without any direct allegation of that fact, and without denying his knowledge of the defect in the handle, in any part of the petition. Ueither the special plea nor the charge was responsive to the cause of action set up, or attempted to be set up, in the petition. The verdict of the jury is founded on a state of law not contained in the charge of the court, and upon a state of facts not distinctly and adequately presented in the petition, so as to reach the true merits of the case.

Judgment reversed and cause remanded. '

Reversed and remanded.