Galveston, H. & S. A. Ry. Co. v. Currie

• Decision Date: 31 October 1906
• Parties: GALVESTON, H. & S. A. RY. CO. v. CURRIE et al.
• Court: Texas Supreme Court

Page 1073

96 S.W. 1073

GALVESTON, H. & S. A. RY. CO. v. CURRIE et al.

Supreme Court of Texas.

October 31, 1906.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Mrs. Orb Currie and others against the Galveston, Harrisburg & San Antonio Railway Company. A judgment in favor of plaintiffs was affirmed by the Court of Civil Appeals (91 S. W. 1100), and defendant brings error. Reversed.

Baker, Botts, Parker & Garwood, Newton & Ward and W. B. Teagarden, for plaintiff in error. Nat. B. Jones and Carlos Bee, for defendants in error.

WILLIAMS, J.

This writ of error brings before us a judgment of the Court of Civil Appeals of the Fourth district (91 S. W. 1100), affirming a judgment of one of the district courts of Bexar county against plaintiff in error, and in favor of defendants in error, the widow and children of J. B. Currie, for damages resulting to them from his death, charged to have been caused by the negligence of the plaintiff in error.

The facts out of which the questions arise may be stated thus: The act which caused Currie's death, and for which the railroad company is charged with responsibility, was committed by one Nicholls, who was employed by it as one of its engine dispatchers in its roundhouse in San Antonio, and had, under his direction and control, a number of subordinates, among whom were Currie, who was an engine wiper, and one Spahn, who was a hostler. Nicholls, when on duty, had "the care, custody, and control of things used there [in the roundhouse] for the purpose of getting engines in and out," and his duties required him to have all necessary work done on engines; to receive them when they came in; to get them ready, and dispatch them out when wanted for use on the road. His testimony admits of the construction that his duties were such as to include the right, when he thought proper to do so in their performance, to use the compressed air with which the roundhouse was supplied, as stated below. And it was the duty of himself, or of any of the employés to put out a fire on an engine when they saw it. Currie's duties were to clean engines, and to do whatever else in the roundhouse he might be ordered to do. By means of a main pipe of iron passing through it overhead, the roundhouse was supplied with compressed air, passing through the pipe from a storage tank, and from this main pipe there led downward into each engine stall a smaller pipe, also of iron, to which a rubber hose, one-half inch in diameter, could be screwed, for the purpose of using the air as a motive power; its pressure ranging from 40 to 100 pounds to the square inch. Each of these smaller pipes had upon it a globe valve, by which the amount of air turned into the hose could be regulated. "Cracking" the valve, as used by the employés, meant the turning of it partially on. This compressed air was used, as shown by the testimony, as a motive power, for loading wheels or heavy machinery, for running gear motors, for drilling and riveting, for cleaning flues, by boiler makers and machinists in the performance of their various duties, and in any other way when it could serve a proper purpose. On the occasion when Currie received the injury from which he died, Spahn, the hostler, had brought into the roundhouse an engine with an oil burner in the ash pan of which oil was burning. Up to this time water had been used to extinguish fires in the engines, but, no water hose being at hand, Spahn, for the first time, and as an experiment, determined to use the compressed air to blow the fire from the ash pan, and, having attached a hose to one of the pipes, requested Currie, who was standing by, to turn the valve. He succeeded in thus blowing out the flame, but the loud noise thus made attracted Nicholls and other employés to the spot. The fire was then out, and Currie had shut off the air, but Nicholls, apprehending that the valve confining the oil in the engine might not be properly set, and that escaping oil, running over the hot surface, might reignite, directed Spahn to go upon the engine and see to the condition of the valve, taking from Spahn the hose which was still attached to the air pipe, and directed Currie to "crack" or turn on the air. Some statements in the record, which counsel for defendants in error regard as presenting the aspect of the facts most favorable to them, are to the effect that Nicholls thus held the hose charged with air to be ready to blow out any fire that might spring up in the engine. This will be assumed to be true for the purposes of our decision. As Spahn ascended the engine, Nicholls turned the hose so as to strike him with the escaping air, causing him to jump and the bystanders to laugh. He then, almost immediately, according to some of the evidence, turned the hose upon Currie, so that the air struck him about the buttocks. That this was done in sport as a practical joke is conclusively shown by the evidence. No ill effects were at once noticed but, after a few moments, Currie became sick, and complained that he was hurt, and, upon subsequent medical examination and an operation, it was demonstrated that the air had entered through the clothing into the rectum, perforated and lacerated the intestines in many places, and escaped into the abdominal cavity outside of the bowels, eventually causing death. The physician who testified to these facts stated that neither he nor any of the other doctors with whom he talked about the case believed that such a thing could be possible until the unquestioned facts proved it, and that it was the most remarkable accident of which he had ever heard.

The charge of the trial court submitted the cause to the jury under the ordinary rule, by which a master is made responsible for acts of his servant done in the line of his duty, and in the scope of his employment. The verdict necessarily affirmed that the act of Nicholls was of the character to make the railroad company liable under that rule, and the Court of Civil Appeals, in affirming the judgment, held that the evidence warranted such a finding. This presents one of the principal questions now to be decided. Beyond this, counsel for defendants in error contend that liability of the railroad company is established under a principle laid down in the authorities, which, in effect, declares that one who keeps in his possession, or employs in his business, that which, unless carefully guarded and used, is dangerous to others, is bound to exercise proper care to see that it is so kept and used as not to inflict injury; and the negligence of any one into whose care it is committed by the owner, either in failing to properly guard it, or in improperly using it, is that of the owner; and it is claimed that this is true where the servant or custodian, as in this case, employs the dangerous thing, not in the line of his duty or for any purpose of serving the master, but for his own purposes; the contention being that this is a violation of the duty of the servant to safely keep it.

Another question, the consideration of which naturally comes first in order, is made by counsel for plaintiff in error by the contention that an action is not given by the statute of this state for a death caused as that of Currie was. The statute gives such action against railroad companies when the death is caused by the "unfitness, negligence, or carelessness of their servants or agents." There is no pretense that this death was caused by unfitness of Nicholls, and the proposition is that it did not result from his negligence or carelessness, but from his willful and intentional act. The meaning of this statute was to some extent considered in Lipscomb v. Railway Co., 95 Tex. 5, 64 S. W. 923, 55 L. R. A. 869, 93 Am. St. Rep. 804, in which a much more plausible contention on the part of the defense was overruled. In that case the employés of the defendant intended to kill the person at whom they shot, but negligently executed the master's orders in mistaking the person slain for a burglar. Here the servant intended not to kill, but only to play a harmless prank, and, in the effort to do so, mistakenly employed means which caused death. If it be true that the statute requires that the death be "negligently," as distinguished from "willfully," caused, it does not follow that the act from which the death results must be unintentionally done. Thus restricted, the statute only requires that the death be caused by negligence, and it seems plain that, if the servant intentionally does an act with no purpose of inflicting injury, but so does it as proximately to cause death, the result is due to his negligence or carelessness. Indeed, in a large proportion of the injuries resulting from negligence, an act is intentionally, but negligently done, while its mischievous consequences are unintended. We therefore hold that there is nothing in this contention.

But we cannot agree that the evidence, regarded in its strongest light for plaintiffs, warrants the conclusion that Nicholls' act was done in the prosecution or furtherance of his employers' business. The case is controlled, in our opinion, by the proposition, in which all authority agrees that when the servant turns aside, for however short a time, from the prosecution of the master's work to engage in an affair wholly his own, he ceases to act for the master, and the responsibility for that which he does in pursuing his own business or pleasure is upon him alone. Let it be conceded that in holding the hose in readiness to put out any fire that might again flare up, Nicholls was performing a duty as servant, and that had he, while thus holding it, or in attempting to use it for the purpose for which it was held, negligently turned it against one of the other employés, his negligence would have been imputable to his employer as incidental to the effort to do that which was in the line of the servant's duty. It may be further conceded that if, in...