Missouri Pacific Railway Co. v. Crenshaw , 71 Tex. 340 ( 1888 )

Walker, Associate Justice.

This is an appeal from a judgment in the district court for five thousand and seventy dollars as damages for personal injuries against the appellant. The injuries were alleged to have been caused by the negligence of the defendant, and its managing employes, in furnishing plaintiff a defective baggage truck with which to remove baggage to and from the trains in his employ as porter.

The defendant pleaded general denial, contributory negligence, and that the fellow servants of plaintiff in their common employment, contributed proximately to the injury by their negligence.

The facts in evidence are: Crenshaw, on November 1, 1886, entered the employ of the defendant company as a porter; his work.was, in connection with another, to carry baggage from the cars to the baggage room, and from the room to the cars. In this work three trucks were used, one heavier and larger than the others. The larger truck was old and showed appearance of use; some plank were missing from the floor. In the ordinary work the lighter trucks were used, the other being used only when the quantity of baggage made it necessary—that is, when the smaller ones would not carry, it. The heavy truck was out of repair, and its condition was known to the employes of defendant before plaintiff was employed, and he was not informed of its defects further than were manifest to his sight. The injury for which suit was brought was caused by a heavy trunk falling upon the left foot of plaintiff and mashing it. The circumstances of the transaction were that there was an unusual quantity of baggage, and all three trucks were loaded. Plaintiff was moving the heavy truck; had pushed it out of the baggage room and thereby turned it, placing one of the wheels under the bed of the truck, in order to get to the train, some ten or fifteen steps distant, when the bed tipped down, the trunks falling about and upon him. This tilting of the truck was attributed to the absence of the nut at lower end of the king bolt. There being nothing to hold it in place, it slipped up, causing the truck to tilt to one side.

One of the witnesses testified that “anyone could have found the defect in this pair of trucks by stooping down and examining underneath, but not otherwise, unless it was loaded heavily and got top heavy, when it would wobble. Besides the nut being absent, some of the planks in the floor were off, and any one looking'at it was bound to see that they were off. It was not fit to use. The baggage master was in charge of the trucks, and it was his duty to look after them and keep the room supplied with trucks.”

As to the damage, two physicians testified that plaintiff was rendered a cripple for life. When injured he was receiving thirty-five dollars a month wages.

The court charged the jury upon the duty of the defendant to its employes in furnishing safe implements for their use, and the risks and care by the employe, as follows:

“It is the duty of railroad companies to use reasonable care in selecting and furnishing to their employes implements and appliances with which the latter are to perform their duties, to see that such implements are safe and appropriate ones to be used. The care which said companies are bound to use is such as ordinarily prudent persons would employ in such matters, The care to be used is to be considered with reference to the risk to be incurred, and must be reasonably proportioned to such risk. The duty also rests upon such companies to use such care to keep the implements in good and safe repair. They are not held, however, to insure their servants against hurts from defective appliances, but only to use the care just explained. After they have used such care they are not responsible for any hurt the servant receives while in the discharge of his duties. The servant upon entering the service assumes all risks to himself from his employment save those which flow from the negligence of the employer in the failure to perform such a duty as that herein before defined. The duty is also incumbent upon the servant to use reasonable care in the performance of his duties for his own protection against hurts. He is bound to use such care in using the implements as men of ordinary prudence would ordinarily use in his situation while performing the same duties resting upon him. For any injury received by him which by the exercise of such care as is just defined he ought to have foreseen and prevented, he can not hold the employer liable. But beyond the exercise of the care just defined the duty does not rest upon the servant to keep the instrument or tool he uses in repair, nor to search for and report defects unless by the contract between him and the master, or by the nature of the employment, that duty is devolved upon him. His duty is to protect himself, in doing his work with the implement, against such dangers as men of ordinary prudence acting in his place and performing his duties would commonly see and provide against.”

The charge proceeds to apply the above law to the facts of the case. These rules are in accordance with authority of our own courts, (58 Texas, 288, Ry. Co. v. Whitmore; 64 Texas, 549, T. &. P Ry. Co. v. Scott; Ib., 600, H. & T. C. Ry. Co. v. O’Hare; 66 Texas, 526, M. P. Ry. Co. v. Callbraith; 66 Texas, 734, T. & P. Ry. Co. v. Bradford.) It is' deemed unnecessary to restate them or to verify them by citations.

The defendant asked the court to give the following special instructions, and they were refused:

“ 1. It was the plaintiff’s duty, under his employment, to see that the truck in question was in a reasonable safe condition for the use to which it was applied, and if he failed to use reasonable care, observation and inspection to ascertain its defects, and he continued to use it until he was hurt, by reason of a defect which he could have discovered by such care, inspection and observation, you will find for the defendant. In deciding this question I charge you that if the plaintiff had charge of or used the truck, in the performance of his duties, and if it was of simple construction, and was subject to wear and become defective by use, the law imposes on him the duty of watchfulness and care to discover defects, whether he was especially directed by the railroad company or not in regard thereto. Therefore, if his injury resulted from his failure to perform this duty, he can not recover. He could not rightfully presume that said truck was safe for use without such watchfulness, inspection and care, as heretofore stated, if it was under his care or that of his fellow servants, and was subject to wear and become defective by use. If he did so presume, and as a result was injured by a defect which he could reasonably have discovered, he can not recover. If he had equal opportunity with the railroad company to discover the defect complained of, he can not recover.”

“2. The plaintiff can not recover unless he shows by a preponderance of testimony, first, that the truck was defective and that it caused the injury; second, that the railroad company knew it, or could have known it, by exercising care; third, that the plaintiff did not know of the defect and could not have known of it by exercising care, and he can not then recover if the manner of rolling the truck caused it to out around and throw the trunks on his, Crenshaw’s, foot.

The first charge refused was defective in imposing by its terms a degree of care upon the employe not required by the law. While charged with knowledge of patent defects and with the usual effect of use and wear upon the machinery, the employe is never charged by his mere duty of using it with the duty of inspection for latent defects. Besides, in this ease, the defect was in fact known to the defendant—a like accident having happened before its employment of plaintiff. Plaintiff did not know of the defect, and without receiving information from others of it, could only have ascertained it by looking underneath the truck and inspecting it for defects. This he was not required to do.

As to the second charge, it does not correctly define the degree of care required of plaintiff. The proposition in the charge asked as a necessity to recovery, it must appear "That Crenshaw, the plaintiff, did not know of the defect, and could not have known of it by exercising care,” does not suggest whether ordinary care required of an employe to observe what was patent, or the care of an inspection made to pass upon the condition of the machine for use, was required. Its refusal was proper. The question as to the sufficiency of the testimony was for the jury. The instructions fully submitted the issues made. That but for the defect in the truck it is shown the injury would not have been sustained.

The plaintiff testified he had loaded and was handling the truck in the usual way, and that he did not know of the defect, and could only have found it out by an inspection underneath the truck. That there was some testimony to want of care on part of defendant, and of proper care on part of the plantiff, can not be denied. The jury were satisfied as to its sufficiency. The verdict will not be disturbed for insufficiency in the testimony.

The error assigned that the verdict is excessive is not sustained by the record. The plaintiff was made a cripple for life, besides suffering great pain and much loss of time.

The judgment is affirmed.

Affirmed.

Opinion delivered October 9, 1888.