East Line & Red River R. Co. v. Scott

• Decision Date: 09 November 1888
• Parties: EAST LINE & RED RIVER R. CO. <I>v.</I> SCOTT.
• Court: Texas Supreme Court

10 S.W. 298

EAST LINE & RED RIVER R. CO.v.

SCOTT.

Supreme Court of Texas.

November 9, 1888.

Appeal from district court, Marion county; W. P McLEAN, Judge.

F. H. Prendergast, for appellant. C. A. Culberson, for appellee.

STAYTON, C. J.

This action was brought by appellee to recover damages for an injury that he alleged was caused to him, while in the employment of appellant, by the explosion of the boiler of an engine used to operate a pile-driving machine. The action was brought in Marion county when tried, and when the cause was called for trial the appellant made an application for a continuance based on the absence of F. M. Sprague, who resided in Hunt county. The witness had testified by deposition, and the appellant desired his presence in order that he might explain a part of his evidence already given. No effort had been made again to take his deposition, but, being in the employment of appellant, it depended upon having him present on the trial, but in this was disappointed by reason of the fact that one of appellant's officials had given him leave of absence. The bill of exceptions shows that the application was for the second continuance. No such diligence as the law requires has been used, and the court below did not err in overruling the motion for a continuance. It seems that appellee was in the employment of appellant as a fireman, when he was directed by the proper authority "to go to Carson, and stay with engine 190 and the pile-driver as watchman." This was on February 5, 1886, and in obedience to the order he went. There was some pile-driving to be done about one mile and a half west of Carson, at a bridge, and on the morning of the next day the train, with the pile-driver, having remained during the night at Carson, went to the place where the work was to be done with the regular engineer, F. M. Sprague, in charge of the locomotive. The train, with pile-driver, returned to Carson at noon, and went out again in the afternoon in charge of the fireman, but soon returned to the side track at Carson to let a train pass. After this, Sprague, the engineer, was sick, and he directed the appellee in charge of the locomotive to take the train to the place where the piles were to be driven, which he did. Behind the locomotive were the tender, caboose, and car on which was the pile-driver and engine to operate it. When these arrived at the place where the work was to be done, appellee, and others of the crew, went to the car on which was the pile-driver and its engine, and soon after the boiler of this engine exploded, causing the injuries to appellee of which he complains. Appellee alleges that the explosion was caused by defects in the boiler, and by the want of proper skill in the person who was operating the engine for the pile-driver.

The evidence for appellee shows clearly that the boiler was very defective, and tends to show that the person who had it in charge had but little, if any, experience as an engineer. No evidence was introduced to show that the engineer was competent, or that any inquiry had been made as to his competency; but a witness for appellant, who examined the boiler on the day it was sent out, stated that he thought it then in good order, and that from an examination made after the explosion he thought it was caused by an overpressure of steam. F. M. Sprague, the locomotive engineer, testified that "John S. Scott [the appellee] ran the engine out on the evening of the explosion by my request, as I was sick, and not able to handle the engine. Scott's duty was to watch the engine at night. It was not his duty to take the engine out from Carson that day, but at my request he did it. I requested him to take the engine out, as it was the custom for watchmen and men who were hired as Scott was to assist the engineer in case of sickness, as he was an old fireman, and I thought him a competent man to handle the engine. Scott's time was his own from 7 o'clock A. M. to 6 o'clock P. M. He was requested by me to handle the engine as aforesaid. Scott took the engine at my request. If he had not taken it, my opinion is the result as to him would have been the same. When Scott arrived at the bridge he stopped the engine, and came over on the pile-driver car with the train crew. I don't know what he was doing at the time of the explosion. He was on the third car from the locomotive. I don't know how came him to be there." It is shown that appellee was not actually doing anything at the time of the explosion; that his bedding was in the caboose, where he slept; and there was evidence tending to show that his duties, as watchman only, would not have taken him from Carson, and that he might have spent the day as he pleased,...