Drake v. San Antonio & A. P. Ry. Co.

• Decision Date: 26 October 1905
• Citation: 89 S.W. 407
• Parties: DRAKE v. SAN ANTONIO & A. P. RY. CO.
• Court: Texas Supreme Court

89 S.W. 407

DRAKE v. SAN ANTONIO & A. P. RY. CO.

Supreme Court of Texas.

October 26, 1905.

Error from Court of Civil Appeals of Fourth Supreme Judicial District.

Action by John B. Drake against the San Antonio & Aransas Pass Railway Company. There was a judgment of the Court of Civil Appeals, reversing a judgment for plaintiff (85 S. W. 447), and plaintiff brings error. Reversed.

Williams & O'Connor, P. J. Lewis, and H. C. Carter, for plaintiff in error. Houston Bros. and R. J. Boyle, for defendant in error.

WILLIAMS, J.

Plaintiff in error, as plaintiff in the district court, recovered a judgment against defendant in error, as defendant, for damages for a personal injury sustained by plaintiff while in the service of defendant. This judgment was reversed by the Court of Civil Appeals on the ground that both the pleadings and evidence showed that "plaintiff has no case," and that court rendered final judgment in favor of defendant. The question is whether or not the Court of Civil Appeals, after having reversed the judgment, erred in finally adjudicating the controversy. No especial point arises in this connection upon the pleadings. Those of plaintiff state the facts which the evidence tends to show in their strongest light in favor of plaintiff, and if the evidence was sufficient to go to the jury the petition is necessarily sufficient to sustain a recovery. We shall therefore confine our discussion to the questions raised by the evidence.

Plaintiff was a member of a section gang in the service of defendant under the immediate superintendence of a foreman. On the day when plaintiff was hurt the men were engaged in loading flat cars with steel rails, in doing which some of them stood on the ground and placed the rails upon skids, one end of which rested on the car, and pushed them along the skids until they reached the edge of the car, when they were received by two other employés, standing on the car, and put in place. In thus placing the rails, they were lifted or pulled by means of rail hooks, which were simple tools with a crook at one end, a handle at the other, and a stem about 20 inches long; the crooked end being inserted in the bolt holes in the rails. Plaintiff had been working on the ground until just before the accident, when he was ordered by the foreman to go upon the car and assist another in handling the rails. A rail hook had already been placed upon the car, and plaintiff took and used it in his work. After he had handled in the manner stated from three to five rails, the hook, because it was worn and was too small and not sufficiently curved, slipped from the hole in a rail as plaintiff was pulling upon it, whereby he was caused to lose his balance and fall from the car and suffer the injuries of which he complains. He had had previous experience in thus handling rails and in the use of such hooks, but it does not appear that he knew of the presence of any defective ones. He testified that he did not notice the defective condition of the hook until he had fallen, when he examined it, and at once saw that it was in the condition stated. He was ordered by the foreman, when he went upon the car and continually while doing the work, to "hurry up and get the rails out of the way," and he says that he had no occasion to examine the hook—"had to pick it up as I came"—and thought it safe. He admits, however, that he had to see the hook in inserting it in the bolt holes. He did not select the particular hook, but found it upon the car, where one was usually put for use when such work was being done, and he states that "nobody knew anything about the hooks until he was on the car; he never climbed on the car with the hook; he found it up there." This statement will be sufficient to indicate the questions of fact and law to be passed upon.

The first question is whether or not the evidence raises an issue of fact for the jury as to the master's negligence, and in determining this the facts are to be considered in their combination, and an answer found to the inquiry whether or not they warrant a reasonable opinion that there was wanting on the master's part that ordinary care exacted by the law for the safety of his employé. This is not to be determined, in a case like this, by any hard and fast rules of law as to the duty of inspection, but by the judgment of rational minds upon the facts, and, if there be room for reasonable differences of opinion, the judgment of a jury must be taken. No solution of the question is reached by saying, as was said in the Larkin Case (Tex. Sup.) 82 S. W. 1026, that the duty of ordinary care did not require of the master that regular and careful...