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

• Decision Date: 13 January 1915
• Docket Number: (No. 5373.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 172 S.W. 1129
• Parties: GALVESTON, H. & S. A. RY. CO. v. HARRIS.
• Court: Texas Court of Appeals

Page 1129

172 S.W. 1129

GALVESTON, H. & S. A. RY. CO. v. HARRIS.

(No. 5373.)^†

Court of Civil Appeals of Texas. San Antonio.

January 13, 1915.

Rehearing Denied February 10, 1915.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by George E. Harris against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition.

Baker, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden and Ed W. Smith, all of San Antonio, for appellant. Perry J. Lewis, Randolph L. Carter, and H. C. Carter, all of San Antonio, for appellee.

CARL, J.

Appellee, George E. Harris, sued the Galveston, Harrisburg & San Antonio Railway Company, appellant, for personal injuries sustained about February 5, 1913, by reason of a handhold coming loose or breaking, whereby appellee was precipitated to the ground and one of his feet and the ankle crushed to such an extent that it became necessary to amputate the limb below the knee. The accident occurred at Uvalde.

The petition charges:

"That in said freight train there was being used by the defendant a certain oil tank car, and on the side of said car, and some two or three feet from the end thereof, was an upright piece, and on said upright piece there was a grabiron or handhold fixed perpendicularly upon said upright piece for the purpose of being used by defendant's employés in the operation of said car and the train; that said grabiron or handhold was defectively and insecurely fastened and in such a condition as to make it dangerous to be used for the purpose for which it was intended; that plaintiff, in the discharge of his duty, sought to get upon said car, and, in order to get upon said car, he took hold of said grabiron or handhold, and, while using said grabiron or handhold for the purpose for which it was intended, the same gave way, and the plaintiff was thrown under the moving cars and injured, as hereinafter stated."

It is pleaded further: That it was unlawful for the defendant to use in its train a car which was not provided with sufficient and secure handholds or grabirons; and, notwithstanding this, the defendant negligently permitted the use of the car which had unsafe, insecure, and defective handholds or grabirons, which negligence is alleged to have directly caused and contributed to the plaintiff's injury. That the defendant failed to make proper inspection of said handholds or grabirons by competent inspectors, and that, if proper care had been exercised in the matter of inspection, such defect would have been discovered in the handhold or grabirons, and his injury avoided. That the injury happened at night, and appellee did not know of the defective condition of said handhold or grabiron, and he was without fault. In addition to the loss of the limb, he received a severe shock from the fall and internal injuries to his heart and head. That his nervous system received a shock, and that his kidneys and bladder have become affected to such an extent as to make it difficult to retain his urine in a normal way, and that his back was injured, from which he suffers severe pain, also that his right eye is affected and the sight impaired.

Appellant admitted the accident was caused from the handhold or grabiron giving way, but denied that the appellee was in the discharge of his duty when injured, pleaded that the car upon which he was injured was a foreign car, and appellant had made a proper inspection thereof, and was therefore not liable, since such inspection did not disclose the defect, admits "that shortly after the accident happened, and while the train was still at Uvalde, it was found that said handhold or grabiron was disconnected at the upper end, and that the nut from the upper bolt was gone, and that the bolt to which the upper end of said handhold or grabiron had been attached was not bradded, and that the threads of the said bolt (that remained in the car) were rusty," and pleads that the car, which was east bound, had been inspected at Sanderson and Del Rio by competent inspectors and no defect discovered. It is claimed that the defect was latent, and, since the same was not discovered by a proper inspection, appellant was not liable. It is admitted that the injury to the leg is a permanent one, but that the others are is denied, as well as the fact that the other injuries alleged were caused by the fall. And contributory negligence is pleaded.

The verdict of the jury was for $25,000, and this is claimed to be excessive.

The first three assignments deal with the refusal of the court to give requested charges touching the duty of inspection, etc. The first of those charges is:

"The undisputed evidence shows that the car in question was not a car of the Galveston, Harrisburg & San Antonio Railway Company, but was a car of the Texas & New Orleans Railroad Company. You are therefore instructed that the defendant company cannot be held responsible or liable for any defect there may have been in the construction of the handhold in question, or in the material of which the same was constructed, or in the manner of the application of the handhold to the car, unless you find from the evidence that the defect therein (if any) was such that same could and would have been discovered and remedied by defendant by proper inspection thereof made after the car came into its line, and before the accident happened; and if you find that there was such a defect of construction, or of material, or of application, and that same was the cause of the alleged accident, and that same would not have been discovered and remedied by defendant by proper inspection made of the handhold after the car came onto its line, and before the accident happened to plaintiff, then plaintiff is not entitled to recover, and you should return a verdict for the defendant."

It will be noticed that this charge speaks of defects of construction or of material, while the evidence shows that the nut was off the top bolt which came out. This was the defect complained of in the plaintiff's pleadings, and this was admitted in the answer. This charge would have authorized the jury to find for appellant, even though the nut may have been gone for a long time, and its absence could have been discovered by the exercise of ordinary care, if the default of the owner of the car was the cause of the nut coming off. The charge assumes that this was a foreign car, but that may be set aside. Ordinary care in inspection is required of all cars, regardless of their ownership. Railway v. Kernan, 78 Tex. 297, 14 S. W. 668, 9 L. R. A. 703, 22 Am. St. Rep. 52; Railway v. White, 76 Tex. 103, 13 S. W. 65, 18 Am. St. Rep. 33; Railway v. Harris, 45 Tex. Civ. App. 542, 101 S. W. 506. In the last-named case, the court says:

"It was the duty of the defendant, as stated in the paragraph of the charge complained of, to use ordinary care to furnish a reasonably safe handhold for plaintiff's use in the performance of his duties, as brakeman, and plaintiff had the right to presume defendant had performed its duty in this respect. It was also the duty of the defendant to make inspection of cars furnished by it to its employés for transportation. As to its responsibility for defects in cars of another company drawn over its road, the Court of Appeals of New York states the law thus: `It is not bound to take such cars if they are known to be defective and unsafe. Even if it is not bound to make tests to discover secret defects, and is not responsible for such defects, it is bound to inspect foreign cars just as it would inspect its own cars. It owes the duty of inspection as master, and is at least responsible for the consequences of such defects as would be disclosed or discovered by ordinary inspection. When cars come to it which have defects visible or discoverable by ordinary inspection, it must either remedy such defects or refuse to take such cars; so much, at least, is due from it to its employés.'"

And, in addition to the main charge, the court gave appellant's requested charge No. 5 as follows:

"If you find that the car in question and the handhold thereon were inspected by defendant's inspectors at Del Rio and Sanderson as said car was being moved on its way to Uvalde where the accident to plaintiff happened, and that the inspection made thereof by said inspectors was such as it is usual and customary to make of such cars and handholds, and if you further find that no defect in said handhold was discovered on such inspections, and if you further find that the inspections that were made by defendant of said handhold after the car came onto the line of defendant, and before the accident to plaintiff happened, were such as persons of ordinary prudence engaged in the railway business would have had made thereof, and that the usual and customary method of defendant of inspecting such cars and handholds was such as persons of ordinary prudence, engaged in the railway business, would have adopted and used, then plaintiff is not entitled to recover, and you should return a verdict for the defendant."

And the court also gave charge No. 4 at appellant's request, which reads:

"If you find that there was a defect in the handhold in question, but that same was latent (that is, that same was of a character that was not discoverable by such inspection as persons of ordinary prudence, engaged in the railway business, would have made of said handhold), then plaintiff is not entitled to recover, and you should return a verdict for the defendant."

These charges which were given covered practically all that was embraced in the other; and where a party asks more than one charge on the same subject, and the court selects and gives one of them, he cannot complain of the refusal of the others. Sullivan v. Fant, 160 S. W. 612; Railway v. Ford, 118 S. W. 1137; City of Greenville v. Branch, 152 S. W. 478. In Railway v. Haney, 94 S. W. 386, ...