Gulf, C. & S. F. R. Co. v. Larkin

• Decision Date: 10 November 1904
• Citation: 82 S.W. 1026
• Parties: GULF, C. & S. F. R. CO. v. LARKIN.
• Court: Texas Supreme Court

82 S.W. 1026

GULF, C. & S. F. R. CO. v. LARKIN.

Supreme Court of Texas.

November 10, 1904.

Error to Court of Civil Appeals, Third Supreme Judicial District.

Action by A. E. Larkin against the Gulf, Colorado & Santa Fé Railroad Company. Judgment of the Court of Civil Appeals (80 S. W. 94) affirming a judgment for plaintiff, and defendant brings error. Reversed.

J. W. Terry and A. H. Culwell, for plaintiff in error. Stanford & Watkins, for defendant in error.

BROWN, J.

Larkin had served as a fireman for about eight months prior to his injury. Upon each locomotive there were two lamps—one white and the other red; the latter being intended for use at night in giving signals. Larkin had been running upon this engine for three days, and had used the same lantern during that time, unless it had been changed the night before his injury while the engine was in the roundhouse at Temple. He had the exclusive possession and control of the lantern, and it was his duty to keep it clean and see that it was in proper condition for use. No other person was authorized to clean it. The lantern was usually left upon the engine when the latter was not in service. There was no evidence that the railroad company caused this lantern to be inspected. While on the engine in the daytime, running from the town of Temple to Cleburne, Larkin undertook to clean the globe of the red lantern; and in doing so the glass globe broke and cut his left wrist, severing the tendons, from which injury his hand became seriously affected, by drawing down and stiffening of the fingers. Upon a trial in the district court of Bell county, Larkin recovered a judgment against the railroad company, which was affirmed by the Court of Civil Appeals.

The railroad company at the trial asked the court to give to the jury the following charge which was refused by the court: "The jury is charged that, the plaintiff having failed to show that he was injured by or through any act of negligence on the part of the defendant, you will return a verdict for the defendant."

The only negligence charged against the plaintiff in error is that it failed to have the lantern which was furnished to the plaintiff inspected before furnishing it, or after it had been furnished, and while he was using it. Inspection is only the means by which the master exercises the care required of him for the servant's protection. It is not the duty of a railroad company to inspect every implement or tool that it furnishes to its employés, but that duty arises whenever the machinery or implement is of such character that a man of ordinary prudence would, under the same circumstances, inspect the machinery or implement as a precaution against injury to the servant. If an individual, being an ordinarily prudent man, would not have inspected the lantern before furnishing it to the servant, or after it had been furnished and while it was in use, then the railroad company was not required to do so in this case. A master is not required to inspect the common tools and appliances which are committed to the custody of a servant who has the capacity to understand their character and uses. Am. & Eng. Ency. Law, vol. 20, p. 89; Miller v. Railroad Co., 21 App. Div. 45, 47 N. Y. Supp. 285; Marsh v. Chickering, 101 N. Y. 396, 5 N. E. 56; Wachsmuth v. S. Electric Crane Co., 118 Mich. 275, 76 N. W. 497. In Miller v. Railroad Company a switchman was engaged in aiding to move some cars by means of a...