O'Brien v. Missouri, K. & T. Ry. Co. of Texas

• Decision Date: 02 July 1904
• Citation: 82 S.W. 319
• Parties: O'BRIEN v. MISSOURI, K. & T. RY. CO. OF TEXAS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 319

82 S.W. 319

O'BRIEN v. MISSOURI, K. & T. RY. CO. OF TEXAS.^*

Court of Civil Appeals of Texas.

July 2, 1904.

Appeal from District Court, Grayson County; J. M. Pearson, Judge.

Action by P. J. O'Brien against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Wolfe, Hare & Maxey, for appellant. T. S. Miller and Smith & Beaty, for appellee.

BOOKHOUT, J.

This suit was instituted October 21, 1902, to recover for personal injuries claimed to have been received by appellant on the 28th day of June, 1902, while in the employ of appellee and working at its roundhouse in the city of Denison in the capacity of machinist. The grounds of negligence alleged were that appellee furnished to him a certain tool or wrench with which to tighten the nuts on the steam chest to one of its locomotives, and that while attempting to do said work in the usual and proper manner, on account of the same being old, worn, improperly constructed, and unsafe for said purpose, appellant received his injuries; that an inspection of said wrench would have shown its defective and dangerous condition; that the defendant negligently furnished the same to plaintiff, negligently provided the same for use in the manner aforesaid, negligently failed to discover its condition and defects, and failed to repair or render the same safe; that all of these facts were well known to defendant, or in the exercise of ordinary care for plaintiff's safety and by means of an ordinary inspection would have been known to it in time to have prevented plaintiff's injuries, yet defendant failed to discover said condition, failed to make said inspection, failed to repair said wrench, and failed to furnish plaintiff with a tool suitable for the uses and purposes for which the same was designed, in all of which matters it was guilty of negligence proximately causing plaintiff's injuries. The defendant answered by a general exception, general denial, assumed risk, and a plea of contributory negligence. A trial resulted in a verdict and judgment for defendant, and plaintiff appealed.

1. It is contended that the court erred in that portion of the sixth paragraph of the charge to the jury wherein they were told that if they believed, from all the facts and circumstances in evidence before them, that plaintiff was guilty of contributory negligence either in the mode in which he used said wrench or in the place and manner he stood while using said wrench, they should find for the defendant, because there was no evidence in the case raising such issue. We do not concur in this contention. The evidence shows that the plaintiff was injured while using a goose-necked wrench to tighten the bolts through the upper plate of the steam chest of the engine. The goose-necked wrench is made by taking a bar of steel, and, after heating it, turning one part thereof at right angles to the other; one of said angles being about 5 inches in length, the other of which constitutes the handle, about 18 inches in length. The short angle is hollowed out and cut in shape to fit on the nut to be tightened. To give more leverage plaintiff procured a piece of gas pipe and slipped it over the handle of the wrench, thereby lengthening it. He placed the wrench upon one of the nuts on the steam chest, and while standing on the ground over or near a block of timber he began tightening the nut by putting his weight on the handle of the wrench and pulling backwards, when the wrench slipped, or opened and spread, causing him to fall backwards upon the block of timber, and injuring him. The facts were sufficient to fairly raise the issue of contributory negligence, and the court did not err in submitting the same. While it was shown that it was customary to place a piece of gas pipe on the handle of the wrench to give greater leverage, this was not shown to be safe or necessary.

2. It is insisted that the court erred in the sixth paragraph of the charge in instructing the jury as follows: "Or if you believe from the evidence that plaintiff's injuries were not caused by a fall, but you believe from the evidence that they were caused by a disease arising from some other cause, * * * you will find a verdict for the defendant." And again, in the seventh paragraph, wherein they are told that they "cannot allow any compensation for...