Texas & P. Ry. Co. v. Barrett

• Decision Date: 05 February 1895
• Docket Number: 226.
• Citation: 67 F. 214
• Parties: TEXAS & P. RY. CO. v. BARRETT.
• Court: U.S. Court of Appeals — Fifth Circuit

67 F. 214

TEXAS & P. RY. CO. v. BARRETT.

No. 226.

United States Court of Appeals, Fifth Circuit.

February 5, 1895

A railway company is bound to exercise ordinary care, such as a prudent man would use, to keep its engines in repair, and if its servants by reasonable care, might know of defects in an engine, then the company is responsible for damages resulting from such defects, to another servant, not connected with the care of such engine.

The defendant requested the court to give the jury the following instructions: '(1) You are instructed that if you believe from the evidence that defendant used ordinary care in the selection of the engine in question, and used the same care in the selection of a competent man to inspect it and keep it in reasonably safe condition, and if you believe from the evidence that the person so employed to inspect said engine and keep it in repaid did exercise ordinary care in its inspection and keeping it in good condition, you will find for the defendant. (2) You are instructed that if the defendant used due care in the selection of the inspector Stevenson, and exercised reasonable supervision over him, and that said Stevenson negligently failed to properly inspect the engine in question, so that in consequence of such failure on his part the explosion in question occurred, his omission of care would be the negligence of a fellow servant for which the defendant would not be responsible. (3) You are instructed that if you believe from the evidence that the defendant originally provided a reasonably safe engine, and that it used reasonable care to employ a competent inspector to keep said engine in repair, and that it used reasonable supervision to see that such inspector performed his duty, you will find for defendant. (4) You are instructed that the presumption is that the defendant performed its duty in respect to furnishing a reasonably safe engine, and in respect to keeping same in reasonably safe repair, and that it devolves upon the plaintiff to establish by a preponderance of the evidence that defendant failed to discharge its duty either in supplying such engine or in keeping it in good condition. (5) Defendant asks the court to instruct the jury herein to return a verdict for the defendant. ' The above special instructions, which were separately presented and asked, the court refused, and the defendant excepted.

The court charged the jury at the request of defendant as follows: 'You are instructed that the master is not the insurer of the safety of its engines, but is required to exercise only ordinary care to keep such engines in good repair, and if he has used such ordinary care he is not liable for any injury resulting to the servant from a defect therein not discoverable by such ordinary care. You are instructed that the mere fact that an injury is received by a servant in consequence of an explosion will not entitle him to a recovery, but he must, besides the fact of explosion show that it resulted from the failure of the master to exercise ordinary care either in selecting such engine or in keeping it in reasonably safe repair. You are instructed that a railway company is not required to adopt extraordinary tests for discovering defects in machinery, which are not approved, practicable, and customary; but that it fulfills its duty in this regard if it adopts such tests as are ordinarily in use by prudently conducted roads engaged in like business and surrounded by like circumstances. ' And in its general charge as follows: 'In this case the jury are instructed that plaintiff sues defendant for twenty thousand six hundred ($20,600) dollars damages, which he says he has suffered by reason of injuries inflicted on him at Fort Worth, Texas, on February 19, 1893, by the explosion of a locomotive engine operated by defendant. Plaintiff in his pleadings says that said engine and its boiler were defective, in this: That many of the stay bolts in the boiler were broken, and that bands of many of the stay bolts were worn and corroded by rust; that the sheets of many parts of said engine and its boiler were corroded and eaten away by rust; that said defects in said engine and boiler were known to defendant before said explosion, or could have been known had it exercised proper care in the inspection thereof. (2) Plaintiff says that by the explosion of said boiler he was seriously and permanently injured in and about the legs, hips, shoulders, spine, etc. That as a result of said injury plaintiff suffered, now suffers, and will continue to suffer all his life under physical and bodily pain and great mental anguish. That he has expended $500 on account of his injuries. That when injured he was earning $100 per month. That since said injuries, and by reason thereof, he has been unable to pursue any business in the line of his occupation. (3) A railway is bound to use ordinary care to furnish safe machinery and appliances for use by its employes in operating its road, and, if ordinary and reasonable care is not exercised by the company to do this, it would be responsible for the injuries to its servants caused by such neglect. The neglect of the servant to whom the company intrusted such duties is the neglect of the master. By ordinary care' is meant such as a prudent man would use under the same circumstances. It must be measured by the character and risks of such business; and where such persons, whose duty it is to repair the appliances of the business know, or ought to know by the exercise of reasonable care, of the defects in the machinery, the company is responsible for his neglect. (4) If the jury believe from the evidence, under the foregoing instructions that the boiler which exploded and injured the plaintiff was defective and unfit for use, and that defendant's...