Ft. Worth & R. G. Ry. Co. v. Day

• Decision Date: 01 April 1909
• Citation: 118 S.W. 739
• Parties: FT. WORTH & R. G. RY. CO. et al. v. DAY.
• Court: Texas Court of Appeals

118 S.W. 739

FT. WORTH & R. G. RY. CO. et al. v. DAY.

Court of Civil Appeals of Texas.

April 1, 1909.

Rehearing Denied April 22, 1909.

Appeal from District Court, Tarrant County; Irby Dunklin, Judge.

Action by E. B. Day against the Ft. Worth & Rio Grande Railway Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Andrews, Ball & Streetman, and H. M. Chapman, for appellants. McLean & Carlock, for appellee.

WILLSON, C. J.

The appeal is from a judgment against appellants in favor of appellee for the sum of $4,000 as damages for personal injuries suffered by him as the result, as alleged, of negligence on the part of appellants.

From the record it appears that appellee received the injuries complained of while in appellants' service as a switchman in their yards in Ft. Worth at about 10 o'clock of the morning of April 19, 1908. At the time he was injured, in the discharge of his duties as appellants' switchman, he was attempting to mount a box car moving at a speed of six or eight miles an hour. The car was a "foreign car"; that is, it did not belong to appellants. It had been in their charge only about two days. It had a ladder or steps on its side and near one of its ends. The bottom round of the ladder, called the "sill step," extended 12 or 14 inches below the sill of the car, or about 14 inches above and 12 inches towards the end of the car from the oil box of the axle of the car. The oil box referred to was about 18 inches above the top of the rail of the track. It was provided with a wooden lid. At the point where the accident occurred the ground on the side of the car where appellee attempted to mount it was about 14 inches lower than the top of the rail. In attempting to mount the car, appellee grasped the lower round of the ladder with his hands, and placed his left foot against the lid of the oil box, intending to throw his right foot onto the "sill step." Because the wooden lid of the oil box was rotten, and therefore broke or slipped in its place when appellee threw his foot against it, his foot slipped from it, causing his right foot to miss the sill step and go under and in front of the wheel of the car, which ran over and crushed it. It further appears from the record that appellee had had about nine years' experience as a switchman, and that as such he had been in appellants' employ about five years, and in their Ft. Worth yards about three months; that oil boxes like the one he put his foot against in the effort to mount the car usually, though not always, were provided with iron lids; that, while the oil box was not primarily designed or intended to be so used, it was and long had been a custom, almost universal among switchmen, to use the oil box in mounting such cars at places where the ground was lower than the track, and that, where the ground was as much as 14 inches lower than the track, brakemen could not mount such a car while moving six or eight miles an hour by means of the ladder alone. It further appeared that if appellee at the time he attempted to mount the car knew the lid of the oil box was a wooden instead of an iron one, he did not know it was unsound.

Appellants insist that the evidence established that they had discharged their duty to appellee by providing the ladder for his use in mounting the car; that they owed him no duty to inspect the lid of the oil box and have it in proper repair for the use he attempted to make of it; and that, therefore, an issue as to negligence on their part was not made by the evidence, and should not have been submitted to the jury. In the application of the rule imposing upon the master the duty to his servant "to use ordinary care and diligence to provide such sound and sufficient appliances or instrumentalities as are reasonably calculated to insure the safety of the servant in performing the service, to discover and repair any defect therein, and to provide a reasonably safe place in which to perform the service" (4 Thompson on Negligence, § 3987), it has been uniformly held that, when the master has discharged the duty, he is not liable on account of an injury suffered by the servant as a result of his using such appliances or instrumentalities for a purpose not required, nor contemplated or intended by the master. But it not infrequently happens that an appliance or instrumentality designed and intended by the master for a specific purpose alone is found to be convenient and effective for another or other purposes. There can be no doubt, if the master, discovering the new purpose to which the instrumentality advantageously could be applied, should direct its use for such purpose, the duty would at once devolve upon him to use ordinary care and diligence to discover and repair defects in it with reference to such new use. Should the rule be different if the master's servants, themselves discovering the new use to which such instrumentality could be put in discharging their duties, apply it to such use, in the absence of the master's instruction to do so, but without objection and with knowledge on his part that it would be so used? In considering the question, it will be instructive to refer to some of the cases where it has been presented and determined with more or less directness.

In Lauter v. Duckworth, 19 Ind. App. 535, 48 N. E. 867, the defendant had constructed a "dry well" of loose bricks for the purpose of receiving waste water from a factory, which entered the well through pipes at the bottom, along with a little steam. Afterward the well was used to receive waste steam, which was let into it by a pipe in the top. The pipes in the bottom becoming stopped up by sediment, the steam forced its way through them, and through the walls of the well into the surrounding earth, where it formed a hole underneath the surface filled with steam, hot water, and hot mud. While the plaintiff was passing over the spot in the discharge of his duties, the earth gave way beneath him, precipitating him three or four feet into the hole, and scalding him. With reference to a contention made by the defendant that the evidence did not show the well to have been constructed for uses made of it, resulting in the injuries to the plaintiff, the court said: "Appellant must be held to know the manner of construction, and the use to which it was put; and, if this improper use was permitted by him, it was equivalent to its construction for such use, so far as his liability might be affected for damages resulting from such use." In Dupree, Receiver, v. Tamborilla, 27 Tex. Civ. App. 603, 66 S. W. 595, the plaintiff, while in the service of Dupree as receiver of the Citizens' Electric Light & Power Company of Houston, had gone to the top of one of the company's poles to trim an electric lamp supported then by iron rods extending over the top of the pole from the arms of an iron casting fitted over the top of the pole. Plaintiff thought the rods were solid, and could not have ascertained that they were otherwise by the exercise of ordinary care in the discharge of his duties as a trimmer. As a matter of fact the rods were hollow and weakened by rust, and broke when plaintiff, in reaching a point from which to trim the lamp, rested his weight on them. As a result of the breaking of the rods plaintiff fell to the ground, and was injured. The receiver contended that the evidence showed that the rods were designed alone to support the lamp and its hood, and were never intended to be used as a means of climbing to a position necessary to be assumed by a trimmer in order to trim the lamp. The court said: "It should be borne in mind that the lamp was at a considerable and dangerous height from the ground; that the trimming of the lamp required the use of both hands. The position necessarily assumed in performing this task placed practically the entire body higher than the top of the pole and the metal casting or cross-arm thus leaving nothing by which the operator could steady or support himself save the rods supporting the lamp and hood. The consensus of the testimony shows that even the most careful and prudent and experienced trimmers, and those who knew the rods were not solid iron, placed some weight on these upright supports while adjusting the carbons, and this is true in the very nature of things. The defendant must have known from the character of the structure that the rods would be used by trimmers in reaching and maintaining their perilous position." And in another part of the opinion, referring to the rods, the court said: "It was the master's duty to construct against the use to which he might reasonably expect they would be subjected."

In Dunn v. New York, N. H. & H. R. Ry. Co., 107 Fed. 666, 46 C. C. A. 546, Dunn, in the service of the railway company as a brakeman, was injured while engaged in uncoupling cars from the from the front end of a locomotive. To steady himself, with one hand he grasped the round plate fastened in the middle of the front end of the boiler, known as the "figure plate," while with the other he pulled the coupling pin. The plate was loose, turned when he grasped it, and as a result he was thrown under the pilot of the locomotive, and thereby was injured. The railway company insisted it was under no...