Gulf, C. & S. F. Ry. Co. v. Garren

• Decision Date: 11 June 1903
• Citation: 74 S.W. 897
• Parties: GULF, C. & S. F. RY. CO. v. GARREN.
• Court: Texas Supreme Court

Page 897

74 S.W. 897

GULF, C. & S. F. RY. CO. v. GARREN.

Supreme Court of Texas.

June 11, 1903.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by B. F. Garren against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. W. Terry and Ballinger Mills, for plaintiff in error. S. C. Padelford and Stanford & Watkins, for defendant in error.

WILLIAMS, J.

Defendant in error was a fireman on one of the passenger engines of plaintiff in error, and was hurt while attempting to get upon the engine at Saginaw, 40 or 50 miles south of Gainesville, by the turning of a step which was in a loose and dangerous condition. The loose condition of the step had been brought to his attention earlier during the same trip at Purcell, Ind. T., by the engineer, who, according to the testimony of defendant in error, said: "Here is a loose step. Hand me the wrench." Defendant in error further testified that, after trying to tighten the step, the engineer found he could not do so with the only wrench at hand, and turned it under the side of the engine, saying, "I'll have it fixed." This is all that took place at that time. At Gainesville, which is between Purcell and Saginaw, the company had shops and car inspectors and repairers, and the defect could have been remedied in a few minutes with the proper wrench. There is a dispute as to the character of defects in engines and cars which were usually repaired at Gainesville, into the details of which we need not enter. There is evidence to the effect that, when the train stopped at Gainesville, there were inspectors and repairers present, with whom the engineer was seen by defendant in error in conversation. Defendant in error left the engine, and was absent 10 or 20 minutes to get his supper, and on his return the train proceeded southward. When it reached Saginaw, defendant in error descended from the engine to perform a duty, and, in attempting to ascend again, was hurt, as stated. One of his contentions is that he believed the step had been fixed at Gainesville, and was in proper position and condition for use. The evidence was not conclusive on this point, but was such as to make it necessary for the jury to determine whether or not he in fact acted on this belief, and whether or not he was justified by the circumstances in so believing and acting.

The charge of the court, among other things, contained the following:

"(6) The servant, by entering the service of the master, assumes all the ordinary risks incident to the business, but not those arising from the master's neglect, if the master should be guilty of negligence. It is the duty of the master to exercise ordinary care to furnish the servant machinery and appliances, and the servant has the right to rely upon the presumption that the master has done his duty in this regard; but, if he learns that the appliances furnished are defective, he assumes the risk incident to that condition of affairs, unless the master is informed of such defects, and promises the servant to remedy the defects, if any. In this latter event, so long as the servant has reasonable grounds to expect and does expect that the master will fulfill his promise, the servant does not, by continuing in the employment, assume the additional risk arising from the master's neglect. If the servant then be injured, he may recover, provided that it be found that a man of ordinary prudence, under all the circumstances, would have encountered the danger by continuing in the service; and if the master has promised to repair such defect, if any, the servant may presume that the master has complied with the promise, and the servant is not required to inspect the appliance before using it, to ascertain whether the repairs have been made, unless there is something in the condition of the appliance which would cause an ordinarily prudent person to make an examination of said machinery.

"(7) If you find from the evidence that it was the duty of the engineer on said engine upon which the plaintiff was working at the time of his injury to have any defects on said engine,...