Chicago, R. I. & M. Ry. Co. v. Harton
| Decision Date | 25 June 1904 |
| Citation | 81 S.W. 1236 |
| Parties | CHICAGO, R. I. & M. RY. CO. v. HARTON.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallam County; Ira Webster, Judge.
Action by J. W. Harton against the Chicago, Rock Island & Mexico Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.
N. H. Lassiter and Robt. Harrison, for appellant. Del W. Harrington and Wallace & Lumpkin, for appellee.
Appellant undertook, through its foreman, with the assistance of W. H. Switzer, machinist, and appellee, as machinist helper, to install a new compressed air jack in its shops at Dalhart, Tex., and met with difficulty in putting the part called the "plunger" in the cylinder. An effort was made to overcome this difficulty, which was due in part, at least, to an undiscovered defect in the finish of the cylinder, but which was supposed to be due to the condition of the packing, by driving the plunger down in the cylinder. Finding that it could not thus be forced all the way down, and that it would have to be taken out, they made a steam connection, which resulted in blowing it out with so much force that it knocked to pieces the trestle above it. At this juncture appellee, who had been sent off by Switzer to put away some tools, appeared on the scene, and was struck by a piece of the trestle timber and severely injured. The foreman and Switzer, who had just taken shelter in anticipation of what might happen, had not warned appellee to look out for the danger.
In submitting the issues to the jury, the court gave the following instruction, to which errors are assigned: "If you believe from the evidence that the explosion alleged in the plaintiff's petition occurred as alleged in said petition, and that by reason thereof the plaintiff, J. W. Harton, was struck by pieces of timber or other hard substance broken from a trestle and thrown violently against plaintiff, thereby injuring him; and if you further believe from the evidence that the compressed air jack that was being placed in position was defective, and that said defect, if any, was known to the defendant or the persons in charge of placing it in position, or by the use of ordinary care would have been so known, or that the defendant or persons in charge of said work applied steam to said compressed air jack in a careless and unskillful manner, such as constituted negligence on their part; and if you further find that plaintiff did not know of the said defects, if any, in said jack,...
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