Gulf, Colorado & Santa Fe Railway Co. v. Silliphant , 70 Tex. 623 ( 1888 )

Walker, Associate Justice.

Silliphant sued and obtained judgment against appellant for damages suffered by him when working a hand car as an employe of appellant.

The plaintiff’s case is, that the direct cause of the injury was . the breaking or giving way of the lever, at one end of which he was working, aiding in propelling a hand car from a section-house to the place of labor, of the squad of which he was a member. He had worked several months on another railroad, and knew the manner of working a hand car. On the morning of his second day’s work for defendant he was ordered to work at the lever in the hand car, his position being indicated by the boss—on the outside, with his back toward the direction the car was moving—a position not unusual with eight or ten men in the car, as there were at the time. The work required the use of strength upon the lever in its upward and downward motion. After the party had gone some distance, and while the car was in motion, and when plaintiff was rising, the-lever gave way, breaking in the socket; from the sudden break in the resistence the momentum of his body threw him backward. The car ran upon him. The fall and the pressure of the car upon him caused serious injury to his spine.

The broken lever was of pine timber. It broke in the socket through which it passed. It had been fastened in place by a nail or iron bolt through it; at the break, which was at the place penetrated by the nail or bolt, the wood was discolored, showing decay and evidence of a partial old break. Outside the socket there was no evidence of a defect. There was testimony that oak and hickory was the best quality of wood, hut that pine was in common use and had sufficient strength for the purpose of safety. The foreman in charge of the machinery testified that the car was new and had been in use from the middle of August (the accident was on November 30); that he was accustomed to examine the cars, and had done so, and that “there was no defect whatever in the handle of the car.” He also said he had the other piece of the broken lever at home and would produce it, but he did not. The boss in charge of the car said “the handle looked to be good and it had not been regarded unsafe.”

In this conflict in the testimony, this court will not disturb the verdict. It would seem that, by the use of ordinary care in testing the condition of this lever, its weakness might have been ascertained by the superintendent. If so, the defendant would be chargeable with such knowledge, and consequent liability would follow an injury from the defect. (49 Texas, 181, Railroad Company v. Dunham; 59 Texas, 256, Railroad Company v. McNamara.)

Naturally a lever made of any kind of wood, with time, use and exposure will wear out or become unsafe. Experience in using such instruments should indicate something of the probable effects of use, exposure and time, or a combination of them, upon their strength, and when they would likely become unsafe. A newly employed hand, as was the plaintiff, would not be likely to know anything of the condition of machinery furnished for his use, as to safety, beyond what was visible to the eye. Here the break was out of sight. In performing the •duty of inspection, for the purpose of keeping proper machinery reasonably safe for the employes, it would devolve upon him to make use of his experience and to take note of whatever facts he knows, or might reasonable know, leading to knowledge of the true condition of the machinery. In short, his tests and •oversight must be real. Taking the circumstances into view, the superintendent had much greater facilities for knowing the .strength or want of it in the machinery than the plaintiff, who was not shown to have ever seen the lever before he was put to work it the morning of the accident. It was therefore not error in the court to refuse the charge that, if the opportunities of the ■plaintiff and of the defendant were equal to ascertain the defect, plaintiff could not recover. It was not applicable to the testimony.

The defendant asked the charge, “That a person taking employment is presumed to have requisite skill and knowledge for the employment, and to assume the ordinary dangers of the employment.” 'The rule is, the employes are presumed- to take-the natural risks incident to their work, not those arising from the negligence of the employer. (Pierce on Railroads, 371; Wharton on Neg., 211.)

Complaint is made against the charge as to its declaration of the degree of care required of the defendant in providing suitable machinery, as to latent defect in machinery, as to the burden of proving negligence, etc. The charge in part is set out here, and we think it a sufficiently clear statement of the law applicable to the facts:

“You are instructed that it is the duty of a railway company to furnish to its employes machinery reasonably safe for the-purposes for which it is to be used. It is also the duty of a railway company, after having provided such machinery, to use-reasonable diligence to see that said machinery is kept in reasonably safe condition. If the railway company fails in either-of these" respects, and injury is thereby occasioned to one of its employes, then the company is guilty of negligence. A railway company is not bound to furnish absolutely safe machinery nor to absolutely keep it in a safe condition, but simply to use the diligence above described in providing it, and seeing that, it is kept in such safe condition. If you find that the handle of said car was made of inferior wood, and such as-was unfit and not reasonably safe for the purposes of a handle to said car, or if said handle, though originally reasonably safe and suitable for the purposes of operating said car, had become rotten or-out of repair, and if the defendants knew of said defects, or by the use of reasonable diligence could have discovered said defects, then to furnish a car with such a handle would be negligence on the part of the railway company. An employe of a railway company is required to use reasonable care and caution, to prevent an injury to himself in operating the machinery furnished to him by the company, and if he failed to do this he-would be guilty of negligence. If an employe of a railway company knows that machinery furnished him is defective and unsafe, and if, having such knowledge, he nevertheless undertakes to use it, and while so using it an injury is occasioned to* him by said defect, then, under such circumstances, he would be guilty of negligence. If said handle was defective and unsafe, and if plaintiff knew of such defective and unsafe condition before the handle broke, or if, in operating said" car,, plaintiff voluntarily took a position upon said car which was, dangerous, and which did contribute to bring about the injuries complained of, then, in either event, plaintiff would be guilty of contributory negligence.

“If said handle was reasonably safe and suitable when the car was furnished to plaintiff, then defendant was not guilty of negligence in furnishing it. If said handle was defective as to material, rotten, or out of repair when so furnished, if its defects were unknown to defendant, and if defendant could not, by the use of reasonable diligence, have discovered its said defects, then, in such case, defendant would not be guilty of negligence in furnishing car with such a handle. • If said handle was so defective, and if plaintiff did not know of the defects in it, and if he did not voluntarily take a dangerous position on said car, then he would not be guilty of contributory negligence.

“If you find, under the above instructions, that plaintiff and defendant were both guilty of negligence, which contributed to bring about the accident to plaintiff, then plaintiff can not recover herein and you will find for defendant. If you find that neither plaintiff nor defendant were guilty of such negligence, then you will also find for defendant.

“To find for plaintiff you must believe from the evidence that defendant was guilty of negligence which caused the injuries to plaintiff, and in addition, that plaintiff, on his part, was not guilty of any negligence which contributed to bring about the accident to himself.”

The testimony of Harris that “he started his market in east Dallas for the purpose of giving employment to plaintiff, who needed it.” was not improperly admitted, coming as it did from matter elicited in cross examination by defendant.' But as the ability of plaintiff to earn wages was an issue, that his present wages was in part charity, was competent.

As to the measure of damages complained of in the charge. The petition alleges “that the injuries caused by the defendant’s negligence induced great suffering, permanent ill health, and physical weakness.” The charge complained of includes “physical and mental disability or weakness occasioned by injuries.” We think the terms “great suffering, permanent ill health, and physical weakness,” are sufficiently comprehensive to include the matters specified in the charge.

The verdict is large, and it is claimed to be excessive.- The ''-Xpert medical testimony is contradictory as to the probability of final and complete recovery by plaintiff from the effects of his injuries. That his injuries were serious, his loss of time great, and his physical pain intense and protracted, is not in dispute. The amount is not so great as to show prejudice or misconduct on part of the jury. (50 Texas, 266; 58 Texas, 42; 60 Texas, 646; 61 Texas, 484; 62 Texas, 135; 62 Texas, 368.)

Opinion delivered May 4, 1888.

The judgment below is affirmed.

Affirmed.