Ft. Worth & D. C. Ry. Co. v. McCrummen

• Decision Date: 14 January 1911
• Citation: 133 S.W. 899
• Parties: FT. WORTH & D. C. RY. CO. v. McCRUMMEN.
• Court: Texas Court of Appeals

Page 899

133 S.W. 899

FT. WORTH & D. C. RY. CO. v. McCRUMMEN.

Court of Civil Appeals of Texas.

January 14, 1911.

Appeal from Potter County Court; W. M. Jeter, Judge.

Action by J. D. McCrummen against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Spoonts, Thompson & Barwise, Thos. F. Turner, and G. W. Wharton, for appellant. Barrett & Jones, for appellee.

CONNER, C. J.

This suit was instituted by appellee against the appellant to recover damages for personal injuries alleged to have been received by him in March, 1909, while employed by the defendant as a fireman in its roundhouse in the city of Amarillo. It was alleged that, while in the pursuance of his duty in firing an engine in the roundhouse, he undertook in the usual way to put a piece of wood in the fire box of the engine, but that by reason of a knot or protrusion it did not go in, but caught on the fire box, and caused the piece of wood to jam and bruise the plaintiff's hand. He alleged that the usual way of putting a piece of wood into the fire box on an engine is to place the left hand and arm under the piece of wood that is to go first into the fire box, and then to place the right hand on the other end of the piece of wood, and give it a hard throw or shove into the box, and that, while so attempting to place the stick of wood in question, it caught as stated, and bruised his right hand, resulting in great pain and permanent injury as specified. The grounds of negligence alleged are that "the defendant failed to furnish a sufficiently lighted place in which to work, and failed to furnish him sufficient light to see and to perform his duty, and failed to furnish plaintiff proper wood to be used in firing said engine, and failed to inspect the wood that was furnished him, and failed to furnish plaintiff smooth wood to use in the performance of his duties." All of these acts were charged conjunctively and are averred to be the proximate cause of the injury. The defendant, in addition to the general issue, specially pleaded assumed risk, contributory negligence, and negligence on plaintiff's part in the use of his hand after the injury, whereby the pain and injury had been increased. The trial before a jury resulted in a verdict for the plaintiff in the sum of $766, and defendant has duly appealed.

We have concluded that the judgment must be reversed because of the error presented by appellant in the eleventh assignment, wherein complaint is made of the court's rejection of the following requested special instruction: "Gentlemen of the jury, you are instructed that it was the duty of the plaintiff to exercise ordinary care to care for and protect the hand after the injury or accident, hence if you find and believe from the evidence that the plaintiff shortly after the accident continued the use of his said hand in the same work, and such continued use aggravated the pain and increased the injury to his said hand, and further find that within a few days after he returned from Ft. Worth that in the employment of the Electric Light Company at Amarillo he further used said hand with an implement or tool in the said hand, which by virtue of said use and labor increased the pain or the injury, and further believe that plaintiff was negligent in this respect, you will find in favor of defendant for such increased pain and injury, and in this connection you are further charged that if you believe that such use as aforesaid (and that plaintiff was negligent in this respect) caused the injury to become a permanent one, and the fingers and joints to become stiffened thereby, you are charged to find in favor of defendant for such permanent injury as well as for any pain and suffering resultant thereby." Appellee testified to both pain and permanent injury, and the court's charge on the measure of damage was perhaps broad enough, as appellant urges under another assignment, to authorize the assessment of damages for all pain and injury permanently resulting from the alleged negligence of appellant, regardless of whether appellee had been guilty of negligence in the use of his hand after the original injury. Appellant, as stated, specially so pleaded, and the issue was not in any affirmative form submitted to the jury. Possibly for the reason that the court thought the evidence failed to raise the issue—but, we are of opinion that it does —plaintiff testified: "The night after I was hurt I went back to work and wanted off, but they would not let me, so I worked that night and the next night. I worked until midnight, when my hand got to hurting so I had to stop. My hand hurt all the time I was working. It hurt so I could not sleep during the daytime. * * * I was hurt on March 14, 1909, and then I went to the Saint Anne Hospital at Ft. Worth, and stayed eight or ten days, and then came back to Amarillo. * * * I laid around home three or four days, then went to work at the electric light plant at Amarillo, and I worked there four or five days, and I could not work any longer because my hand burst open and...