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

• Decision Date: 13 December 1905
• Citation: 91 S.W. 1100
• Parties: GALVESTON, H. & S. A. RY. CO. v. CURRIE et al.
• Court: Texas Court of Appeals

91 S.W. 1100

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

Court of Civil Appeals of Texas.

December 13, 1905.

On Rehearing, January 10, 1906.

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

Action by Orb Currie and others against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Newton & Ward, W. B. Teagarden, and Baker, Botts, Parker & Garwood, for appellant. Nat. B. Jones and Carlos Bee, for appellees.

JAMES, C. J.

The action was brought by the widow and children of J. B. Currie for damages by reason of the death of Currie, an employé in appellant's roundhouse. The cause of his death was the application of a compressed air hose which was being handled by Currie's foreman, Nichols, to the person of Currie, whereby compressed air was injected into his bowels, which led to his death. Plaintiffs recovered.

There were 24 stalls in the house, Nichols testified: "A large post between each stall and a small pipe hitched to the main pipe down to each stall something on the principle of a gas pipe, that was down, there was a globe valve attached to each pipe; the compressed air was used by means of a rubber hose something like a water hose, small half inch hose connected with the valve." "The compressed air was used for several purposes; used for loading wheels and heavy machinery used by the boiler makers, by the machinists for running gear motors, several other uses I can't think of." "I have the care, custody, and control of things used there for the purpose of getting engines in and out." The above is testimony of Nichols. "They use the compressed air for various things, the boiler makers use it, the machinists use it, and it is used for various other things. We use it as a power." Testimony of witness Spahn.

At the time of this occurence an oil burning engine had come into the roundhouse, and was placed in a stall, with oil burning in the ash-pan, about 5 o'clock in the morning. The witness Spahn and deceased took the engine in. Water hose was generally used to put out such fires. This was not handy and Spahn picked up the air hose, had Currie turn on the valve and as he says blew the fire and oil out of the ash pan. The noise attracted Nichols and other employés to the scene. Spahn says also he supposed the fire was out at the time, apparently all the fire that could be seen in the pan was out. Also that between the fire box and the outside there is a small pan or partition in the fire box, the oil that ran over the hot bricks and ran down into this pan caused the fire. The bricks were hot enough to light the oil. The same witness testified that he had turned the oil off when he put out the fire, but he did not inform Nichols of that fact. When Nichols came up, he took the hose from Spahn and ordered him to get up and see whether the oil valve was shut off and as the latter started upon the engine Nichols touched him with the air hose in the region of the rectum, which made him jump down much frightened but not hurt. The same witness Spahn had stated in a deposition as follows: "After fire was out, I started to get on engine when Mr. Nichols turned the air hose on me, I jumped down and saw him turn the air hose on Currie. Currie was standing straight up near post where air hose was fastened—when the air struck him he jumped to one side — in about three minutes afterward Currie said: That damn thing hurt me, speaking of the air hose." In his oral examination the witness testified to an appreciable time and other incidents intervening between the time he was struck and Currie was struck, but on cross-examination he answered affirmatively the following question: "Immediately after he had thrown it on you, and you jumped, he wheeled around and spoke these words and struck Currie; isn't that true?"

Nichols in a deposition testified: "Currie and Spahn had just about put the fire out of the ash pan when I came up; the oil had leaked into the ash pan and they were trying a new scheme by taking the hose and putting it in front of the ash pan and blowing the fire out of the back end of the pit, there being no water hose convenient. * * * When I came up I either took the air hose from Spahn or he handed it to me, the fire being out I told Spahn to get up into the engine and see that the oil valve had been turned off and was not leaking through into the ash pan, which order he obeyed. I either took the hose from Spahn or he handed it to me and I held it while he was getting up in the engine. The engine was in front of me. As Spahn was getting up I turned to Currie and told him to crack or turn on the air. I turned a little of the air on Spahn while he was getting up and it made Spahn jump or flinch, those behind me and near me laughed and Spahn said that felt funny and I wheeled around and struck Currie in the region of the buttocks or near the rectum with the current of compressed air. I was near the engine directly opposite the gangway, Currie was to my left and Spahn was in the act of getting upon the engine. It was the duty of anyone around that saw a fire to put it out. * * * The current was partly turned on by Currie who turned it on previous to the injury, under my order. Currie turned the valve because I told him to. As I turned around as above stated, the air in the hose struck Currie. * * * I was holding the hose for Spahn to get up in the engine as I ordered him to do. Did not know but fire might blaze up again. * * * I thought there might be a recurrence of the fire in which event I would have used the air." There was this interrogatory to the witness: "Is it not a fact that in and at the time you turned the air hose on Mr. Spahn and Mr. Currie you were not then performing any duty or transaction and business for the company, but were you not using said hose and turning the air in the same on said persons in a spirit of fun and frolic?" And this answer: "In having Spahn go on the engine and Currie turn on air I was acting in line of my duty, as to balance of the question I answer yes." Spahn also testified that after the occurrence he stayed there to see whether there was any more fire coming up, until Currie complained of being hurt.

The court submitted the case on charges as follows: "If you believe from the evidence that at the time the compressed air struck J. B. Currie, if it did, Nichols was defendant's vice principal and had control over said J. B. Currie and other employés, and if you believe from the evidence that said Nichols had the compressed air turned on and was engaged in using it in the course of his employment by defendant, and for the purpose of forwarding the business of the defendant, and that, while so using it, if he did so use it, he struck said J. B. Currie with said compressed air, and thereby caused the death of said J. B. Currie, and if you further believe from the evidence that said Nichols knew, or, in the exercise of ordinary care would have known, that said compressed air was likely to cause Currie's death, or do him serious bodily harm, and that it was negligence on the part of said Nichols to strike said Currie with said compressed air, if you find he did so, and that such negligence, if any, was the direct cause of J. B. Currie's death, and if you further find from the evidence that the plaintiff, Orb Currie, was the wife of said J. B. Currie, and that Minnie E. Currie and Clinton C. Currie were the children of said J. B. Currie, and that said plaintiffs were damaged by his death, then I charge you that your verdict must be for the plaintiffs." "If you believe from the evidence that at the time H. M. Nichols applied the compressed air to the person of J. B. Currie, deceased, that said act was not done within the scope of the general authority or employment of said Nichols, and you further believe that it was not so done in the performance of the master's business and for the accomplishment of the object for which said Nichols was employed by the defendant, and that said act was not so done while performing any duty with said compressed air in behalf of said defendant railway company, and that said act was an independent act of the said H. M. Nichols, in no wise connected with any duty being performed by said Nichols for this defendant, and you further find that said act was so done by the said Nichols for the purpose of playing a prank upon said Currie, then you will find a verdict in favor of the defendant."

The first assignment of error is that the court refused to give a charge instructing the jury to find for defendant, and under this appellant has advanced several propositions:

First. The act of Nichols having been willfully and intentionally done, it does not come within the meaning of the words "negligence or carelessness" of servants as used in article 3017, Rev. St. 1895. Nichols did not intend to injure Currie. The idea of killing him or doing him any harm was not in his mind. He intended to do what he did, that is to apply the air to Currie, but he did not intend what proved to be the consequence of his act. The statute in question has been to some extent and sufficiently for all practical purposes construed by the Supreme Court in Lipscomb v. Railroad Co., 95 Tex. 5, 64 S. W. 923, 55 L. R. A. 869, 93 Am. St. Rep. 804. That case recognizes that a killing by a servant may be intentional and yet the result of his negligence is therefore within the statute. We take it that when the death is produced through the negligence in any recognized form as a proximate cause the statute applies. Any act which is merely rash, reckless, or wanton as distinguished from intentional, or made without regard to consequences, is negligent. There was evidence here, in fact the evidence could not well lead to any other conclusion, that the conduct of Nichols was a species of negligence, which, without being meant to have any injurious effect, caused Currie's death. This view...