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

• Decision Date: 21 June 1904
• Citation: 82 S.W. 343
• Parties: GALVESTON, H. & S. A. RY. CO. v. PERRY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

82 S.W. 343

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

Court of Civil Appeals of Texas.

June 21, 1904.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by John A. Perry against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Baker, Botts, Baker & Lovett, Andrews & Ball, and C. L. Carter, for appellant. Brown, Lane, Garwood & Parker, for appellee.

GILL, J.

John A. Perry brought this suit against the railway company to recover damages for personal injuries alleged to have been sustained by him as the result of a fall due to the negligence of the company in failing to properly inspect and repair a handhold on a freight car. The company defended under the general denial and a plea of assumed risk. A trial by jury resulted in a verdict and judgment for plaintiff, from which the defendant has appealed.

Plaintiff was a conductor in the service of defendant, and on the occasion in question was in charge of a freight train on appellant's line. In the course of his duties it became necessary for him to mount to the top of a freight car. This was accomplished by means of a ladder composed of rungs fastened to the side of the car and a handhold on the top of the car, which it was necessary to use in lifting himself to the top after reaching the upper end of the ladder. According to plaintiff's statement, the handhold pulled out when he undertook to use it, and he was thereby caused to fall to the ground, carrying the handhold with him. That the handhold was actually pulled out is not questioned, and testimony adduced by plaintiff tended to show that the wood to which it was fastened was decayed, as indicated by portions of it which clung to the lag screws with which it was fastened to the wood, and the pulling out of which caused the fall. The car from which plaintiff fell was a foreign car—by which is meant a car which had been delivered to defendant by another road, and which it was its duty under the law (if in good condition) to accept and transport to its destination. The handhold in question was fastened by "lag screws," which are large screws screwed through the handhold into the wood. This character of fastening is perfectly safe, and will hold the weight of any man when the wood is sound and the fastening in good condition. Upon a considerable per cent. of the freight cars this character of fastening is still used, though a fastening composed of bolts and nuts is more durable, and coming into more general use. Defendant sought to show that it had exercised reasonable care in inspecting the handhold, and was therefore not liable; and, further, that because plaintiff knew that many cars were equipped with the lag-screw fastening he assumed all risk incident to their use.

The court charged the jury, among other things, that while plaintiff assumed all the risks ordinarily incident to his employment, such assumption of risk did not begin until defendant had used ordinary care to securely fasten and maintain in safe condition the handholds on its cars. To this portion of the main charge appellant urges two objections: First. It was erroneous and misleading to say the assumption of risk did not begin until the company had discharged its duty as to ordinary care. Second. It was error to impose the duty to exercise ordinary care to "securely fasten" and maintain in "safe" condition the appliance in question. As a matter of strict law, the charge is not accurate. From the inception of his employment the plaintiff assumed the risks ordinarily incident to the service. The risks superadded by the negligence of the master did not form a part of these, unless brought to his knowledge. Applying this principle to the issue in this case, we have this result: The risk ordinarily incident to the use of the lag-screw fastening plaintiff assumed, for he knew that many cars thus equipped were handled by appellant. He also assumed the risk of such defects in the appliances as would not have been disclosed to the company by an inspection conducted with ordinary care. This latter risk he assumed in any event, for, if the company had not inspected the car at all, yet, if the defect which caused the accident would not have been discovered by a proper inspection, it fell in the category of assumed risks. The error in the charge thus becomes clear, for the assumption of the risk last named began and continued independent of the exercise of care on the part of defendant.

In view of another trial, we take occasion to say in this connection that, as this record stands, it does not...