Collins v. Pecos & N. T. Ry. Co.

• Decision Date: 28 May 1919
• Docket Number: (No. 64-2807.)
• Parties: COLLINS v. PECOS & N. T. RY. CO.
• Court: Texas Supreme Court

Page 477

212 S.W. 477

COLLINS v. PECOS & N. T. RY. CO.

(No. 64-2807.)

Commission of Appeals of Texas, Section B.

May 28, 1919.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by Robert Collins against the Pecos & Northern Texas Railway Company. Judgment for plaintiff, and defendant appeals, and from a judgment of the Court of Civil Appeals of Amarillo (173 S. W. 250), reversing and remanding, plaintiff brings error. Reversed, and judgment of trial court affirmed.

J. Marvin Jones, L. C. Barrett, and Jas. N. Browning, all of Amarillo, for plaintiff in error.

Terry, Cavin & Mills, of Galveston, Madden, Trulove & Kimbrough, of Amarillo, and Carl Gilliland, of Hereford, for defendant in error.

SADLER, J.

This suit was filed in the district court of Parmer county by Robert Collins, to recover damages from the Pecos & Northern Texas Railway Company, for injuries alleged to have been caused by negligent poisoning while he was acting for the defendant as section foreman in unloading railroad ties recently treated with a mixture known as "creosote." The negligence is charged to have been the failure of defendant to warn him of the danger of poisoning resulting from contact with the solution.

The findings of the jury, and there is evidence to support same, sustain the allegations that about the 27th of May, 1912, plaintiff was working on the line of defendant's road, in charge of a section gang, unloading and placing ties which had recently been treated with a creosote solution for preservation; that these ties were wet with the solution, and that it got on the hands and face of plaintiff, causing injury; that he had theretofore handled creosote ties and timbers on which the solution had dried, but had no experience in handling wet timbers, and did not know that creosote, when wet, would produce injury to his hands and face by coming in contact therewith; that he did not know the properties of the solution, or that it was poisonous; that defendant did know, or by reasonable diligence could have known, that the solution used by it, when coming in contact with the skin before it had dried, would cause injury thereto, and would poison the flesh; that the defendant did not warn plaintiff of the dangers of poisoning or injury which were incident to handling wet creosote solution with his hands, and permitting it to come in contact with his face and hands; that plaintiff was permanently injured as a proximate result of the poisoned condition produced by the solution; and that this injury was the proximate result of the negligence of the defendant.

The honorable Court of Civil Appeals finds that the facts are sufficient to support the conclusion of the jury, except, as it says:

"Assuming that creosote is a poison, and so recognized by the chemists or the medical world, but, as noted by them, all known effects of such poison when applied to the skin is a burning sensation compared to a sunburn, and never known to the profession or treated by standard authorities as producing constitutional disorders, or systemic poisoning, whether an employer would be charged with negligence in failing to warn of such danger, when it did not know and could not know that a constitutional disorder would result from such a use—in other words, was such an injury incidental to the wrong done, and was it such as may have reasonably been supposed to have entered into the contemplation of the appellant? * * * The fact that appellee's condition is a serious one, it will not necessarily follow that the hands burned by creosote produced it, though the opinion of the two doctors may have warranted the jury in finding as a fact it did. The evidence is lacking to show that such injury could or would reasonably have been anticipated, and that appellant did know or should have known thereof, and therefore, in order to prevent it, have warned appellee of such danger."

For a more extended statement of the pleadings, evidence, and discussion of the Court of Civil Appeals, see 173 S. W. 250.

Opinion.

Plaintiff in error complains of the holding by the Court of Civil Appeals that defendant in error was not liable for the constitutional and permanent injuries sustained by him, because it did not, and could not, anticipate that the failure to warn him would naturally result in the permanent injuries to the extent shown by the evidence. He also complains of the holding that the evidence was not sufficient to show that defendant in error had notice, or by the exercise of ordinary care would have known, of the extent of the injury produced by the poisoning of the creosote ties.

As we interpret the opinion of the Court of Civil Appeals, it holds that there is no evidence supporting the contention that the negligence of the defendant, as found by the jury, was the proximate cause of the permanent injuries. We further understand the holding to be that, though the permanent injuries may be the natural consequence of the negligence, responsibility therefor cannot be chargeable against the defendant, without showing anticipation of such permanent injuries to exist at the time of the negligence.

We are thus brought face to face with the question of whether or not, when permanent injuries result from negligence, the wrongdoer is chargeable with all the consequences that naturally and proximately flow from such negligence; also with the question as to whether or not there is any evidence to support the finding of the jury that the permanent injuries to plaintiff were the natural and proximate result of defendant's negligence.

We believe that the correct rule for determining negligence is that where there is reason to anticipate, from the character of the services required and the manner of their performance, some injury may result to the servant, the duty is incumbent to exercise such care demanded by the relationship as will prevent the injury, and the failure so to do becomes actionable in the event injury follows the breach of duty. We are not willing to subscribe to the rule that requires the master to anticipate all ensuing results which flow from the breach, before duty arises to exercise care to prevent the consequences. Anticipation is applied in the determination of negligence vel non. If no injury may be anticipated, no duty is breached by a failure to exercise care; but, if anticipated injury may result, then the duty arises. Negligence rests primarily upon two elements: First, reason to anticipate injury; and, second, failure to perform the duty arising on account of that anticipation. Negligence may exist abstractly; but, to render it actionable, it must be concretely incorporated into some injury.

In the Kieff Case, 94 Tex. 334, 60 S. W. 543, Chief Justice Gaines says:

"The negligence which results in actionable wrong is the failure to discharge a duty owed to the party injured. It is a duty incumbent upon...