Freeman v. Starr

• Citation: 138 S.W. 1150
• Parties: FREEMAN v. STARR.
• Decision Date: 06 May 1911
• Court: Court of Appeals of Texas

138 S.W. 1150

FREEMAN v. STARR.

Court of Civil Appeals of Texas. Galveston.

May 6, 1911.

Rehearing Denied June 15, 1911.

Appeal from District Court, Anderson County; B. H. Gardner, Judge.

Action by A. N. Starr against Thomas J. Freeman, as receiver of the International & Great Northern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John M. King, R. S. Shapard, N. B. Morris, and H. I. Myers, for appellant. A. G. Greenwood and Thos. B. Greenwood, for appellee.

McMEANS, J.

A. N. Starr brought this suit against Thomas J. Freeman, as receiver of the International & Great Northern Railroad, to recover damages for an injury to appellee's left eye, received while in the employment of the receiver in the capacity of machinist, by being struck by a small particle of steel, alleged to have been broken off and cast from a hammer being used by one Coates, a coemployé.

Negligence was predicated upon the alleged failure of the receiver to use ordinary care to furnish said Coates such a hammer as could be used with reasonable safety to himself and the other employés in the shop where they were working, and by failure of the receiver to use ordinary care to keep said hammer in an ordinarily safe condition, and in failing to provide appellee with a reasonably safe place to work. Appellee alleged that the hammer was defective and dangerous, in that it had become chipped off, shivered, slivered, and cracked and was in condition to readily throw off particles with great force when struck against hard substances in the manner of its ordinary and intended use, and that such defects and the dangers therefrom were well known to appellant, or would have been known by the use of ordinary care, and that they were unknown to appellee, or that, if they were known to appellee, appellant was not relieved from liability, because a person of ordinary care would have continued in the service of appellant with such knowledge.

Appellant answered by general demurrer and special exceptions, pleaded a general denial, and specially pleaded the defenses of assumed risk and contributory negligence, and also denied liability on the ground that appellee and Coates were fellow servants, and that, in the event they should be held not to be such, because of article 4560h of the Revised Civil Statutes of Texas of 1895, then that said article is void, because in contravention of the fourteenth amendment to the Constitution of the United States.

The case was tried before a jury and resulted in a verdict and judgment for appellee for $8,000, from which the receiver, after his motion for a new trial had been overruled, has appealed.

The evidence in the record justifies the conclusion, and in deference to the verdict of the jury we find, that appellee was injured in the manner and from the cause alleged in his petition; that appellant was negligent in failing to use ordinary care to see that the hammer was in a reasonably safe condition, and that such negligence was the proximate cause of appellee's injury; that appellee was not guilty of any negligence contributing to his injury, and that his injury did not result from a risk assumed by him, and that he suffered damages in the sum found in his favor by the verdict of the jury.

Appellant's fifteenth and sixteenth assignments of error, which complain of the refusal of the court to instruct a verdict in his favor, and the seventeenth, which complains that the court erred in not granting him a new trial, because the verdict and judgment are not supported by the evidence, and the eighteenth, which complains that the verdict and judgment are excessive, are necessarily disposed of by the foregoing findings adversely to appellant's contention.

The court, over defendant's objection, permitted the witness J. D. Taylor to testify that, prior to April, 1908, defendant used homemade hammers in the shops; "that such hammers were made by just taking a piece of steel and shaping it up, planing and finishing it up as a hammer, and tempering the same; and that such hammers so made were very inferior to hammers that had been forged and properly made." The admission of this testimony is made the basis of appellant's first assignment of error, and to which assignment he subjoins the following proposition: "There was no evidence that the hammer used by Coates was a homemade hammer, but the uncontradicted proof having shown that the hammer used by plaintiff's coemployé, from which it was alleged a particle of steel was cast, striking plaintiff in the eye, was of a certain brand, of standard make and manufacture, it was highly prejudicial to defendant to admit evidence that defendant used homemade hammers in said shops, inferior to the hammer used by said Coates, said evidence being immaterial and irrelevant to any issue in the case, and the court erred in admitting same over defendant's objections."

We think the record does not bear out the contention that the uncontradicted evidence shows that the hammer in question "was of a certain brand, of standard make and manufacture." It is true that the witness Coates, who was using the hammer at the time appellee was hurt, testified positively that it was an "Evansville hammer," made by the Evansville Tool Works. He said: "The mark of this company was upon this hammer that I had at this time. I also had my initials cut in this hammer. I had them engraved there. * * * I know this was an Evansville hammer; you could see the impression of their brand upon this hammer. I could not be mistaken about this; I know that this was an Evansville hammer." There was testimony to the effect that the Evansville hammer was first class, and as good as any made. The testimony further showed that the hammers made in the shops were not as good as the Evansville hammer, because not as well tempered, and being more apt to break, chip, and sliver. On the other hand, although six witnesses examined the hammer used by Coates, none of them, save Coates, testified that it bore the stamp of the Evansville Tool Works. Appellee testified positively that there was no such brand on it that he could see. We think this testimony sufficient to raise the issue as to whether the hammer in question was of the superior manufacture of the Evansville Tool Works, or the inferior grade of hammer made in the shops, and that therefore there was no error in admitting the testimony complained of.

The court in its general charge submitted to the jury the question of whether appellant had used ordinary care to see that the hammer used by Coates was in a reasonably safe condition, and instructed them that if appellant had used ordinary care in this regard to find for him. A special charge requested by appellant to the effect that the appellant did not owe to appellee the duty to inspect the hammer to discover whether it had become chipped or slivered was refused, and the action of the court in giving the charge complained of and in refusing to give the special charge is made the basis of appellant's second and third assignments of error. Under these assignments appellant, by his propositions, contends that the undisputed evidence having shown that the hammer used by plaintiff's coemployé was one of the simplest and most common of tools, and when furnished by defendant was of standard make and manufacture and in good condition, defendant owed no duty to plaintiff to inspect the same and ascertain its condition, and that defendant having pleaded, as a matter of defense, that he owed plaintiff no such duty, the court should not have given the charge complained of, and erred in refusing to give the special charge requested.

We may say that the evidence was sufficient to raise the issue as to whether the hammer when furnished was of standard make and manufacture, or whether it was of the inferior kind made by appellant in his shops. The evidence justifies the conclusion that appellee was hurt by a fragment of steel being cast into his eye from the hammer then being used by a coemployé, and that the hammer at that time had become chipped and slivered. The...