I. & G. N. R'y Co. v. McCarthy

Watts, J. Com. App.

There are but two questions presented by the record which require consideration. One, and the principal ground upon which appellee’s right to a recovery was based, was that the company had been negligent in furnishing to McCarthy a dangerous and defective machine to be used by him in the discharge of his duty as road master, the defects and dangers of which were known to the company, or ought to have been known by the exercise of due diligence, but were not known to McCarthy, nor could have been known by the exercise of reasonable care on his part.

With reference to the duty of the employer in furnishing instrumentalities to be used by the employee, the authorities all agree that the former is bound to exercise reasonable care in the choice or selection of such instrumentalities, and as between them the former is not an insurer. If reasonable care has been exercised in making the selection, the employer will not be held liable for a mistake in judgment. Wood on Master & Servant, secs. 344 and 345; Thompson on Negligence, vol. 2, pp. 270, 272; Pierce on Railroads, 370.

These general rules may be subject to certain exceptions, but they need not be noticed in this connection.

It appears that the velocipede hand-car was then a new machine, which had been in use elsewhere, but was then being introduced on railroads in this state, and the one furnished McCarthy seems to have been the first? used upon appellant’s line. And while one or two of the witnesses used loose and unguarded expressions about defects in the construction of the machine, still it sufficiently appears that they did not mean to convey the idea that these were defects that could not be readily seen in its construction, but that the danger from its use arose from the nature and character of the machine, and not from any latent defect in the material of which or the manner in which it was made.' It appears that no improvement has since been made in the construction of the car, and that it is now in general use upon railroads.

Mor is the position maintainable that it is a complicated machine and hard to understand. Considering the testimony in connection with the cuts sent up with the record, it clearly appears to be very simple in construction, requiring little practice and more care in learning to operate it.

And it may be assumed from the record that all the dangers attending the use of the machine were open and patent, and could be as easily seen by McCarthy as the company. Such being the case, he could not be heard to complain that he was not informed of matters open and to be seen alike by all. H. & T. C. R’y Co. v. Conrad, decided at this term; G., H. & S. A. R’y Co. v. Drew, 59 Tex., 10; G., H. & S. A. R’y Co. v. Lempe, 59 Tex., 19.

Aside from that view of the case, it appears that it was optional with McCarthy whether he used the' car or not. The only evidence upon that issue was this statement of the witness Herrin, who, in speaking of the car, said: “ The I. & G. N. R. R. Co. received it, and it was put together here at Palestine, and was sent to McCarthy at Jacksonville to be used by him at his option.” It should be remembered that McCarthy at the time occupied the important position of road master or supervisor, having charge of the road-bed, etc., from Palestine to Longview. He was not a common laborer whose duty was confined to a particular shop, point or section, working under the immediate eye and control of some boss. On the contrary, his duties extended along a considerable portion of the line, and appear to have been of very considerable importance both in their nature and extent, including some supervision and control of all section bosses and hands on that part of the line.

Mow there is no fact or circumstance shown by the record which tends in.the slightest degree to militate against the truth of the statement. made by Herrin, that it was optional with McCarthy whether he did or not use the car. And there is nothing in the circumstances indicating that his position and the importance of his duties did not entitle him to the exercise of some discretion in reference to the mode by which he would travel along the line in the discharge of such duties.

The court correctly charged the jury that if it was optional with McCarthy whether he used the car or not, that then the company would not be liable.

To arrive at the verdict returned under that charge, the jury ignored and arbitrarily disregarded the uncontradicted statements of an unimpeached witness, who testified by deposition, and against whose veracity not even a suspicion is raised by the record. Obviously the finding in that particular was against the evidence.

In the next place it is claimed by appellant that the finding on the issue of contributory negligence is not supported by but is against the evidence. There can be no question but that if McCarthy materially contributed to his death by his own negligence, then no recovery can be had against appellant in this case. In this connection it should be remarked that certain facts relating to that issue are fully established by the evidence. From the other evidence in the record, and the position occupied by McCarthy, it may be answered that he was well acquainted with the road-bed, embankments, cuts, curves and grades on that part of the line between Palestine and Longview. It was his duty to inspect the road-bed, and see that it was kept in good condition. And in the discharge of that duty it seems that he very frequently passed over that portion of the line. The evidence also shows that the schedule time of the various trains was known to him, and that before he left Troupe on his tour of inspection, which terminated in his death, he was informed that freight train number nine (9) was then pulling out from Over-ton and was coming in the direction of Troupe, and it appears that there was no telegraph office between these stations.

Thus, being fully informed as to the condition of the road-bed, embankments, cuts and curves, and also that the train was then en route between the two stations, the undisputed, and it seems the indisputable, fact exists, that under these circumstances he voluntarily rode into a cut, where, if the approaching train, if near, would be running on a down grade, and, on account of a curve, those operating the train could not be expected to see him in time to check or stop the train so as to avoid inflicting injury upon him. It does not appear that those operating the train had any reason whatever to expect that McCarthy would then be upon that portion of the line, under such circumstances as exposed him to extraordinary peril. They were, it seems, ignorant of his approach upon the velocipede hand-car, which weighed about one hundred pounds, while he knew that they were coming, propelled by a ponderous engine weighing many tons, and, when toiling at the head of a long freight train, not always subject to prompt control.

While he was not a trespasser upon the track, still he was there under such circumstances that a prudential regard for his personal safety would have suggested the exercise upon his part of a degree of care or prudence commensurate with the risk then being incurred.

There is not one single circumstance developed by the record that in the remotest degree tends to break the force of the overwhelming and inevitable conclusion that McCarthy, in going into the cut at the time and under the circumstances, was guilty of culpable negligence, which, if not the main cause, certainly contributed directly to his death.

Hence as to this issue the verdict is clearly wrong; not only not sustained by but against the evidence.

Our conclusion is that the judgment ought to be reversed and the cause remanded.

Keversed and remanded.

[Opinion adopted December 18,1884.] ^*

* Neither the record nor opinion in this case was procured by the reporter until December, 1885.