Adams v. Gulf, C. & S. F. Ry. Co.

• Decision Date: 12 June 1907
• Citation: 102 S.W. 906
• Parties: ADAMS v. GULF, C. & S. F. RY. CO.
• Court: Texas Supreme Court

102 S.W. 906

ADAMS v. GULF, C. & S. F. RY. CO.

Supreme Court of Texas.

June 12, 1907.

Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.

Action by J. G. Adams against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for defendant, plaintiff appeals to the Court of Civil Appeals, Fifth District, which certified a certain question to the Supreme Court. Question answered.

S. C. Padelford, for appellant. J. W. Terry, Brown, Bledsoe & Lomax, and Chas. K. Lee, for appellee.

GAINES, C. J.

A question in this case is certified to us by the Court of Civil Appeals for the Fifth Supreme Judicial District. The statement and question are as follows:

"The appellant, J. G. Adams, instituted this suit in the district court of Johnson county against the Gulf, Colorado & Santa Fé Railway Company, appellee, to recover damages alleged to have been sustained by him while in its employ as a common laborer. He alleged that he was injured in going down on a ladder into a tank car to clean the same; that, when he placed his weight upon the ladder, one of the sides broke, and gave way and caused him to fall, whereby he was injured. It was alleged that the ladder had been placed in the car by the air men, and, when they were through, they left it in the car for appellant's use, and that he climbed upon the car and in attempting to descend into it the ladder broke causing him to fall. He alleged that the ladder had been manufactured by defendant and was furnished by it for its workmen to use; that the defect in the ladder was that one of the sides was made out of cross-grained material which rendered it liable to break and was the cause of its breaking. He claimed damages in the sum of $12,000. The petition is voluminous, but the above is the substance of the allegations. Defendant answered by a general denial, contributory negligence, assumed risk, and that by the rules and custom of the company it was the duty of plaintiff to inspect and examine the tools used by him; and, if he failed to inspect, and it was in any way defective, then he was guilty of contributory negligence. A trial resulted in a verdict and judgment for defendant, and plaintiff appealed.

"The plaintiff testified, in substance, that in August, 1904, he was employed by the defendant in its machine shops in the city of Cleburne as a common laborer to clean out oil tank cars; that after the oil tank cars had been repaired, and prior to their being used again, it was the plaintiff's duty to go up on the tank cars and go down into them and clean them out; that these tank cars are very dark on the inside, being very large and made of metal and round, and about eight feet or more in diameter, having only one hole or place of entrance, which is on the top in the center of the tank car, and being a hole 18 inches in diameter and just large enough to admit the body of a man, and the metal extends up above the hole and around it for about 12 or 18 inches; that the defendant had furnished to plaintiff a ladder for the purpose of going down into said tank car; that this ladder was placed with its feet upon the bottom of the tank car, and the top on the tank car, just below the hole or entrance; that a valve stem, which is round and about one inch in diameter, extends from the bottom of the tank car up to the side of this manhole, and, when a ladder is placed into the tank car, this valve stem or pipe extends up by the ladder; that the air men, who also had to go down into these tank cars, also had a ladder, which was used for said purpose; that several days before the plaintiff's injuries he discovered that the side of the ladder which had been used by the tank cleaners had been broken on account of the grain running across said side piece, and it had been repaired by having another piece nailed across said break; that plaintiff, seeing that this ladder was in this condition, showed the same to the foreman, Roberson, and told him to have the same repaired, and that his foreman told him that he would have it repaired and to use the air men's ladder until the cleaners' ladder was repaired; that the plaintiff did not see this ladder...