Galveston, H. & S. A. R. R. Co. v. Delahunty

• Decision Date: 26 March 1880
• Docket Number: Case No. 860.
• Citation: 53 Tex. 206
• Parties: GALVESTON, H. & S. A. R. R. CO. v. PAT. DELAHUNTY.
• Court: Texas Supreme Court

53 Tex. 206

GALVESTON, H. & S. A. R. R. CO.

v.PAT. DELAHUNTY.

Case No. 860.

Supreme Court of Texas.

Mar. 26, 1880.

APPEAL from Harris. Tried below before the Hon. James Masterson.

The opinion states the facts.

E. P. Hill for appellant.

I. The charges complained of by appellant put the employer in the relation of an insurer or guarantor of the servant against injury, whereas the true and universally recognized principle is, that he is bound only to exercise reasonable and ordinary care in providing materials to do the work required, and can be held liable to the servant only when negligence can be properly imputed to him in failing to exercise such care. No such rule of law as that announced in the charges is applied in the case even of injury to passengers. (Cooley on Torts, note 1, p. 557.) The charges complained of are not qualified or corrected by the subsequent charge quoted by appellee's counsel, as follows: “If the proof satisfy you that defendant furnished sound rope, or rope reasonably fit for the work it was applied to, find for defendant; or, if plaintiff had equal opportunity to ascertain the condition of soundness or unsoundness of the rope that defendant had, then plaintiff cannot recover.” The first clause of this charge, so far from qualifying or correcting the error of the others, persists therein, and, taken in connection with them, holds the defendant as bound absolutely and at all events to furnish a sound rope. The second clause relates entirely to a distinct issue in the case, viz.: whether plaintiff (appellee) had equal means of knowing, or did know, the condition of the rope.

II. The complaint of appellant is not that the charges were “indefinite or incomplete,” but that the law as therein stated by the court is positive error.

The rule is well settled that where there is no error in the charge as given, but the complaint is that it was not sufficiently comprehensive, or that the law of the case was not fully given, or did not embrace the whole law applicable to the case, then the “indefinite or incomplete” matter should be supplied by asking instructions, but it is otherwise where, as in this case, the charge given is erroneous. Appellant's third assignment of error is, “The court erred in overruling the motion for a new trial,” and the grounds of the motion are: “First, because the verdict of the jury is contrary to the law and evidence. Second, because the verdict of the jury is contrary to the charge of the court, as applied to the facts in evidence, and because the charge is erroneous.”

III. This case was tried and appealed before the adoption of the new rules by this court, and however it may be now, an assignment “that the verdict is contrary to the law and evidence” was always, before the adoption of the new rules, regarded and treated as sufficient. In case of Flanagan v. Boggess, 46 Tex., 334, cited by counsel for appellee, the assignment was “that the court erred in its charge.” So in Trammell v. McDade, 29 Tex., 362, an assignment of that character was said to be an imperfect compliance with the law, but in the same case an assignment “that the verdict is contrary to the law and evidence” was treated and considered by the court as sufficient.M. Looscan for appellee.

I. The charges of the court, as assigned as error by appellant, contain correct propositions of law. H. & T. C. R. W. Co. v. C. J. Dunham, 49 Tex., 181; I. & G. N. R. R. Co. v. T. Doyle, 49 Tex., 190; Wood's Master and Servant, secs. 377 and 406; Perry v. Rickets, 55 Ill., 234;Chicago v. Swett, 45 Ill., 201;Lalor v. C. R. R. Co., 52 Ill., 401; C. R. R. Co. v. Jackson, 55 Ill., 492; C. R. R. Co. v. Harney, 28 Ind., 28;Gibson v. Pacific R. R. Co., 46 Mo., 163;Coombs v. New Bedford Cord Co., 102 Mass., 572;Quaid v. Cornwall et al., 13 Bush (Ky.), 601;Leonard v. Collins, 70 N. Y., 90; Boree Stone Co. v. Kraft, 31 Ohio St., 287; Hough v. Texas Pacific R. R. Co., Central L. J., Feb. 6, 1880.

II. If that portion of the charge, specified in first and second assignment, be objectionable, the same was qualified and corrected by a subsequent portion (2d subdivision) of the charge, and appellant sustained no injury thereby. The court charged: “If the proof satisfy you that defendant furnished sound rope, or rope reasonably fit for the work it was applied to, find for defendant; or, if plaintiff had equal opportunity to ascertain the condition of soundness or unsoundness of the rope that defendant had, then plaintiff cannot recover.”

III. If the charge as given was too indefinite or incomplete (which we deny), defendant should have excepted to the charge, and asked for additional charges. Hall v. O'Malley, 49 Tex., 73;Johnson v. Blount, 48 Tex., 43.

GOULD, ASSOCIATE JUSTICE.

This is a suit brought to the July term, 1875, of the district court of Harris county, by Pat. Delahunty, appellee, against the Galveston, Harrisburg & San Antonio Railway Company, appellant, for damages because of personal injuries alleged to have been sustained by him, without any fault on his part, while in the employ of appellant, resulting from the supplying to him by appellant of unsuitable and unsafe machinery or appliances to work with, to wit: a rotten or unsound rope, the unsafe or defective condition of which rope he did not know, nor had he any means whatever of knowing; that appellant was guilty of gross and willful negligence in furnishing him with such insufficient appliances; that it knew of such defect, or could have known of it by the exercise of ordinary care; and from subjecting appellee to dangerous risks not incident to his employment.

The leading or principal facts showing the circumstances under which the injury was received may be thus stated:

On the 21st of February, 1875, Patrick Delahunty, who was in the employ of the Galveston, Harrisburg & San Antonio Railway Company as a section foreman, was, in the discharge of his duties, with the road master (Norway) and other employes, engaged in replacing upon the track a box car, which had run off the day previous. They set a couple of skids under the car, with the ends resting on the rails; then fixed a rope around the car, and using a block and fall, or tackle, with one end of the rope attached to the stump of a tree and the other to a flat car attached to an engine, which furnished the motive power, had “raised the car up gradually on the under side until it brought it on a level,” and “the upper side had been brought up until it just leaned over on its edge.” In this operation over one hundred feet of the rope had been pulled out. With the car in this position, the road master, who appears to have been directing the work, put Delahunty and others to level a place under the car for crib work, to block it up, and while doing this, the rope broke and the car came down on Delahunty, and he was severely injured. The rope was one previously used in digging wells, and was used on this occasion by direction of the road master. There was testimony tending to show that it was worn, and not very good. It was in evidence that it was customary in raising cars to use a derrick, but that on the defendant's road they always used block and tackle. No evidence was introduced on behalf of d...