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

• Decision Date: 24 January 1906
• Citation: 93 S.W. 682
• Parties: GALVESTON, H. & S. A. RY. CO. v. PARISH.
• Court: Texas Court of Appeals

93 S.W. 682

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

Court of Civil Appeals of Texas.

January 24, 1906.

On Rehearing, March 7, 1906.

Appeal from District Court, Bexar County; A. W. Seeligson, Judge.

Action by W. S. Parish against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Newton & Ward, W. B. Teagarden, and Baker, Botts, Parker & Garwood, for appellant. Perry J. Lewis and H. C. Carter, for appellee.

FLY, J.

This is a suit for damages arising from injuries, alleged to have arisen through the negligence of appellant in furnishing a defective stirrup or step, on which appellee was attempting to ascend a box car. Appellant answered by general demurrer and general denial. The trial resulted in a judgment for appellee for $6,000.

The following charge of the jury is the subject of complaint in the first assignment of error: "You are instructed that it was the duty of the defendant railway company to exercise ordinary care to maintain the stirrup on the car, from which plaintiff is alleged to have fallen, in a reasonably safe condition for the purpose for which it was intended to be used." The objection urged to the charge is that it is on the weight of the evidence and intimates that the court thought the stirrup was in a defective condition. We do not think the instruction disconnected from the other portions of the charge, is open to the objection, and when read in connection with the remaining paragraphs of the charge, as it should be, it is evident that the criticism is devoid of merit. The defect in the stirrup was submitted fully and fairly as a question of fact to be determined by the jury. The court charged the jury that if appellant knew, or by the exercise of ordinary care would have known that the stirrup was defective it would be liable, if the defect caused the injury. This is objected to on the ground that there was no evidence tending to show knowledge on the part of appellant. We believe the assignment should be sustained.

The evidence in this case showed that the car with the defective stirrup was not the property of appellant but of another railroad company, or was what is denominated a "foreign car" in text-books and judicial opinions. The only duty under the facts of this case, owed by appellant to appellee, therefore, was the duty of reasonable inspection. This rule is well established. Railway v. Kernan, 78 Tex. 294, 14 S. W. 668, 9 L. R. A. 703, 22 Am. St. Rep. 52; Railway v. Nass, 94 Tex. 255, 59 S. W. 870; Railway v. Mackey, 157 U. S. 72, 15 Sup. Ct. 491, 39 L. Ed. 624; McMullen v. Carnegie (Pa.) 27 Atl. 1043, 23 L. R. A. 448; Railway v. Penfold (Kan. Sup.) 45 Pac. 574; Gottlieb v. Railway, 100 N. Y. 462, 3 N. E. 344; Eddy v. Prentice, 8 Tex. Civ. App. 58, 27 S. W. 1063. In order to fix the liability of appellant the burden rested upon appellee to prove that the stirrup was defective, or out of repair was alleged in the petition, and that appellant knew of the defective and unsafe condition of the stirrup, or that it would have discovered that condition if it had exercised reasonable care in examining the car to which the stirrup was appended. If there was a defect in the car, that rendered it unsafe for the use of employés, appellant's liability would arise upon a state of facts showing actual knowledge, or a state of facts showing that knowledge would have been obtained if the car had been properly inspected. In the one instance knowledge of the defect exists, in the other appellant is charged with it. It has been held that the company receiving foreign cars is merely bound to make such inspection as the nature of the transportation requires of such inspection as time, place, means, and the requirements and exigencies of commerce will permit, but we need not enter into a discussion of such matters. It is sufficient to say that as between master and servant, such an inspection is required as an ordinarily prudent person would make under like circumstances, and the question as to whether such an inspection has been made is one to be determined and answered by the jury. Railway v. Chambers, 17 Tex. Civ. App. 487, 43 S. W. 1090. The absence of the nut from the bolt that held the stirrup was the only defect shown in the stirrup, and there was no evidence that tended to show that appellant knew of the absence of the nut. It was such a defect as would necessitate an inspection to discover it, and the proof was positive that even the inspection given by appellant at Glidden did not disclose the absence of the nut. It might have been inferred from that fact either that the inspection was carelessly and negligently made, or that the nut came off, after the inspection. Certainly the evidence of inspection could not justify the conclusion that appellant knew that the stirrup was defective. The most that can be deduced from the inspection would be that appellant ought to have known that the nut was gone, if it was absent when the inspection was made. If knowledge of the defect could be predicated on the inspection appellant would be placed in an absolutely indefensible position, because if it made a most careful inspection it must have known the nut was gone and would be liable, and if it did not make a careful inspection, that would be negligence which would render it liable. On the other hand it should be the inference if a careful inspection was made and the defect was not discovered that there was no defect at that time and that the nut must have come off afterward. We conclude that there was no proof whatever that appellant knew of the absence of the nut from the bolt in the stirrup, and consequently that the court erred in presenting the issue of its knowledge to the jury. It may be as stated by appellee that it was unnecessary for the court to present the issue of knowledge of the defect on the part of appellant, to the jury, but it was done and a careful scrutiny of the charge does not disclose anything that would tend to destroy or obliterate the effect that the charge as to knowledge must have produced on the jury. A jury would naturally conclude that if, in the mind of the court, there was no evidence of appellant's knowledge of the defect, no mention would have been made of it by the court. It may be argued that there being no evidence of knowledge the jury might have been influenced thereby in favor of appellant, but it is more probable that a different conclusion would be reached, and that the jury might have been led to believe that knowledge might be presumed from an inspection which they may have concluded was a careful and proper one. In any event, we do not know what effect the erroneous instruction may have had on the minds of the jury, and in such cases the duty does not devolve upon the appellant to show that he was injured. He has satisfied the demands upon him when he shows error in the charge. On the other hand the burden is upon the appellee to demonstrate that appellant was not injured by the error. Railway v. Rider, 62 Tex. 267; Railway v. Greenlee, 62 Tex. 344; Railway v. Gilmore, 62 Tex. 391; Emerson v. Mills, 83 Tex. 385, 18 S. W. 805; Railway v. Johnson, 91...