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

• Decision Date: 17 January 1906
• Parties: GALVESTON, H. & S. A. RY. CO. v. SMITH.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

93 S.W. 184

GALVESTON, H. & S. A. RY. CO. v. SMITH.^*

Court of Civil Appeals of Texas.

January 17, 1906.

On Rehearing, February 21, 1906.

Appeal from District Court, Valverde County; B. C. Thomas, Judge.

Action by A. S. Smith against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood and Garrett & Davis, for appellant. Joseph Jones, H. R. Robertson, and H. E. McMains, for appellee.

FLY, J.

This is a suit by appellee, a former employé of appellant, to recover damages arising from the loss of a foot. A trial by jury resulted in a verdict and judgment in favor of appellee for $12,000.

Appellee was employed by appellant, in the capacity of a fireman on locomotives, and, in January, 1905, while engaged in the duties pertaining to his employment, in answer to a question on the part of the engineer as to whether he saw any train following their train, went to the gangway and caught hold of the handhold or handrail on the side of the locomotive, and bent out so as to look back for the train. When he threw his weight on the handhold to look out it came loose, and he was precipitated to the ground, and the wheel of the locomotive ran over one of his feet and cut it off. The handrail gave way on account of one end of it slipping off the bolt by which it was fastened to the locomotive. The nut had come off the end of the bolt, and consequently there was nothing to hold the handrail on the bolt. The nut was too large for the screw on the bolt, and the end of the bolt had been battered to hold it on but it slipped off over the battered end. The handrail, which was placed on the locomotive by the manufacturer, from whom appellant bought it, had been taken off about a year or two before the accident, and the one that caused the injury had been put on by appellant, and the defects covered with paint. The bolt that caused the disaster was too long, and should have been shortened. The evidence justified the jury in finding that the injuries to appellee were inflicted through the negligence of appellant in furnishing a defective handrail for the locomotive on which he was working.

Appellee alleged in his petition that appellant was negligent "in failing to provide proper fastenings for the said handhold, and in allowing the fastenings that were provided to hold said handhold in its place to become defective, loose, and insecurely fastened, and this contributed to the coming loose of the handhold and to plaintiff's fall and injury." No exceptions were urged to the petition, and we conclude that the allegation as to a failure to provide proper fastenings for the handhold was sufficient, in the absence of such exceptions, to admit evidence of the original unfitness of the nut and bolt for the purposes for which they were to be used. The uncontroverted evidence showed that the nut was too large for the end of the bolt, and appellant cannot escape the results of its negligence in furnishing such appliances by proof that the defects had been covered by it with paint, so that its inspectors could not discover the defects. The expertness of the inspectors and the care they may have exercised in inspecting the handholds of the locomotive could not justify the act of appellant in furnishing a defective appliance. It follows that it is immaterial whether evidence as to the latent nature of the defect was excluded or not. It might have been admitted that the defect was hidden so perfectly that no one could discover it by the most careful inspection, and yet no defense to the charge of having furnished the defective handhold is presented.

The fourth assignment of error is in regard to the exclusion of evidence on the part of W. W. Young that a man who catches hold of the handrail of an engine, running at the rate of 10 or 15 miles an hour, and leans out to look back, is in an unsafe and dangerous position. The evidence was objected to, before the witness had qualified himself as an expert, on the ground that the witness had not qualified himself to so testify, and the court stated that the evidence would be excluded for the present. The witness was then interrogated by appellant as to his knowledge and experience, but afterwards the question was not renewed, nor the ruling of the court again invoked. We do not know what the action of the court would have been after the witness had testified as to his knowledge of such matters. We are unable to see how the evidence could have had any pertinency anyway. No matter how unsafe a position appellee may have been in at the time of the accident, the injury did not occur by reason thereof, but on account of the defective handhold furnished by appellant. The evidence had no place in the case, and no doubt would have been excluded by the court if an opportunity had been presented, as it was not, for a ruling on the subject.

What has been herein said about the matter of inspection disposes of the fifth assignment of error, and as it made no difference whether Cavin, a witness for appellant, saw the defects in the handhold or not, it being shown that it was there and produced the injury, the sixth assignment complaining of the rejection of Cavin's testimony must be overruled.

The court charged the jury: "Contributory negligence is the want of ordinary care on the part of the party injured; that is to say the want of such care as an ordinarily prudent person would have exercised under the same or similar circumstances, which, either by itself or concurring with the negligence of the defendant, if any, proximately causes the injury." The definition is objected to, on the ground that it should not have been qualified by the words "which proximately causes the injury." In other portions of the charge the court instructed the jury that appellee could not recover if the accident was caused by his want of ordinary care. This was repeated several times in the charge. In view of the fact that there was no evidence, whatever, in the record tending to show contributory negligence on the part of appellee, the definition of contributory negligence, if incorrect, which is not held, could not have...