Davis v. Callen

• Decision Date: 05 April 1923
• Docket Number: (No. 932.)
• Citation: 250 S.W. 305
• Parties: DAVIS, Agent, v. CALLEN.
• Court: Texas Court of Appeals

250 S.W. 305

DAVIS, Agent, v. CALLEN.

(No. 932.)

Court of Civil Appeals of Texas. Beaumont.

April 5, 1923.

Rehearing Denied April 18, 1923.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Action by James Callen against James C. Davis, Agent, etc. Judgment for plaintiff, and defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood and Garrison & Watson, all of Houston, for appellant.

Jones, Sexton, Casey & Jones, of Marshall, for appellee.

WALKER, J.

On or about the 30th day of March, 1919, appellee was in the service of Morgan's Louisiana & Texas Railroad & Steamship Company as fireman on one of its engines operating between Lafayette, La., and Baton Rouge, La., engaged in interstate commerce. While he was manipulating the shaker bar used for shaking and moving the grates in the fire box, the bar slipped off of the lever by means of which the grates were operated, thereby causing him to fall and receive the injuries for which he was awarded compensation in this suit. No question is before us as to the extent of the injuries, nor the manner in which they were received. There was a sharp conflict as to the character of the shaker bar used. Appellee contended that the one he was using at the time he was injured had the slot in the end of the bar, while appellant contended that the slot was made by Cuffs on the side of the bar, and that it had no slot in the end. Each party offered before the jury a model of a shaker bar and its appliances, illustrating the bar in use according to their respective contentions. Appellant claimed that the model offered by him was the one actually used by appellee. This was denied by appellee, and he testified that the model introduced by him was similar to the one in use, and that the bar in use had the slot in the end. It is sufficient to say, without quoting it, that the evidence on this issue raised an issue in appellee's favor, which we will not disturb.

The trial court submitted the case to the jury on the following charge, omitting the instructions as to plaintiff's measure of damage and other formal parts of the charge:

"Gentlemen of the Jury: Under the law it was the duty of the carrier to have the shaker bar and stem, about which complaint is made in this suit, in proper condition and safe to operate in the service to which it was put, so that it might be employed in the active service of such carrier in moving traffic without unnecessary peril to life and limb. Therefore, if you believe from the evidence that the carrier, its officers or agents, permitted such shaker bar and stem to become worn and in that respect failed to have said appliances in proper condition and safe to operate in the service so that the same might be employed in the active service without unnecessary peril to life or limb, and if you further believe that such failure caused or contributed to cause plaintiff's injuries, and that such injuries would not have occurred except for such failure, then you will find for the plaintiff, and unless you do so find your verdict should be for the defendant. If you find that the shaker bar and stem, at the time of the injury to plaintiff, were in proper condition and safe to operate in the service to which the same were put, so that the same might be employed in such service for moving traffic without unnecessary peril to life or limb, you will find for the defendant, even though you may believe that such shaker bar became disconnected while being used by the plaintiff and plaintiff was injured thereby. Again, if you believe that said appliances were in proper condition and safe to operate in the service without unnecessary peril to life or limb, but you further find that the parts became disconnected by reason of the way in which plaintiff used and handled such appliances, then the defendant would not be responsible for the plaintiff's injuries, and you will find in defendant's favor."

Appellant concedes that the charge as given embraces the language of section 8631, United States Compiled Statutes, which is section 2 of the Boiler Safety Appliance Law, as enacted by Congress in 1911 and amended in 1915 (U. S. Comp. St. § 8639ab), but he insists that the trial court should have construed the language used in this charge, and as supplying the omission, requested that the following special charge be given:

"While the law known as the Safety Appliance Act requires a defendant company to keep its locomotive and all appurtenances thereto in a proper condition and safe for the operation of said locomotives, without unnecessary peril to life or limb of the employees of the defendant company, you are instructed that if you find at the time that the plaintiff received his injuries that the shaker bar and lever connected therewith was in a reasonably safe condition, so that the same could be used and operated without unnecessary peril to the life or limb of the plaintiff, or other employees of the defendant, if used in a proper way and manner, then the defendant would not be liable, even though the shaker bar became disconnected. The defendant is not the insurer of the safety of its employees and is only required to see that its boiler and appurtenances are so constructed and kept in such proper and safe condition as to be used by its employees without unnecessary peril to life or limb, and if you find that said shaker bar and lever connected therewith was in such a condition when used by the plaintiff as not to unnecessarily place in peril the life or limb of the plaintiff, then you are instructed that you will return a verdict for the defendant."

In his argument, appellant thus states his position on the issue involved in this special charge:

"The case having been submitted to the jury under the general charge, the defendant was entitled to have the jury correctly instructed with reference to the law applicable to the defensive issues raised by the evidence. If our contention is correct that the Safety Appliance Act does not make a railroad company absolute insurers of the safety of the appurtenances attached to its boiler, but only to exercise ordinary care to see that they are reasonably safe and proper, then the defendant was entitled to the special instruction requested. The Safety Appliance Act provides that the boiler and appurtenances of a railroad company engaged in interstate commerce shall be in a proper and safe condition to operate in the service for which the same is put, without unnecessary peril to life or limb of its employees. The expression that the attachments to the boiler shall be in such a safe and proper condition as not to unnecessarily imperil the life or limb of the employees, carries with it—at least by implication—that the appurtenances shall not be in such safe or proper condition as to absolutely prevent injury to its employees. The words `so as to unnecessarily endanger the life or limb of its employees' means, and can only mean, that if the appurtenances are in a reasonably safe condition so that it can be used by the exercise of ordinary care so as not to...