Gulf, C. & S. F. R. Co. v. Silliphant

• Decision Date: 04 May 1888
• Citation: 8 S.W. 673
• Parties: GULF, C. & S. F. R. Co. v. SILLIPHANT.
• Court: Texas Supreme Court

8 S.W. 673

GULF, C. & S. F. R. Co. v. SILLIPHANT.

Supreme Court of Texas.

May 4, 1888.

Appeal from district court, Dallas county.

Lemuel Silliphant brought an action against the Gulf, Colorado & Sante Fe Railroad Company for damages for personal injuries caused by breaking of a wooden lever when working a hand car as an employe of defendant. Verdict for plaintiff. Defendant appeals.

Seth Shepard and Ballinger, Mott & Terry, for appellant. M. L. Dye and H. G. Robertson, for appellee.

WALKER, J.

Silliphant sued and obtained judgment against appellant for damages suffered by him when working on 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 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 outside, with his back towards the direction the car was moving, — a position not unusual with eight or ten men in the car, as 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 at the socket. From the sudden break in the resistance, the momentum of his body threw him backwards. The car ran upon him; the full pressure of the car upon him causing 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 evident defect. There was testimony that oak and hickory were the best quality of wood, but 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 middle of August, (the accident was on November 20th;) 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 that 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 as 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 the 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. Railway Co. v. Dunham, 49 Tex. 181; Railway Co. v. McNamara, 59 Tex. 256.

Naturally, a lever made of any kind of wood, with time and 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 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 reasonably know leading to knowledge of the true condition of the machinery; in short, his tests and oversights must be real. Taking the circumstances into view, the superintendent had much more 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 defendants asked the charge "that a person taking employment is presumed to have...