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

• Decision Date: 16 March 1904
• Citation: 80 S.W. 94
• Parties: GULF, C. & S. F. RY. CO. v. LARKIN.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

80 S.W. 94

GULF, C. & S. F. RY. CO. v. LARKIN.^*

Court of Civil Appeals of Texas.

March 16, 1904.

Appeal from District Court, Bell County; John M. Furman, Judge.

Action by A. E. Larkin against the Gulf, Colorado & Santa Fé Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. W. Terry and A. H. Culwell, for appellant. Stanford & Watkins, for appellee.

KEY, J.

A. E. Larkin was a locomotive fireman on the Gulf, Colorado & Santa Fé Railway, and while cleaning a lantern globe the latter broke and cut his arm, thereby causing him serious injury. Larkin sued the railway company, and recovered a judgment for $1,250, and the company has appealed.

He charged the company with negligence in furnishing him a lantern with a defective globe, and the company charged him with contributory negligence in failing to ascertain the condition of the globe, and in attempting to clean it on board of the train while the latter was in motion. The defendant also alleged that the injury complained of resulted from a risk assumed by the plaintiff when he entered the defendant's service. It is earnestly insisted that the verdict is not supported by the testimony, especially on the question of negligence by the defendant. A careful reading of the statement of facts has led us to a different conclusion. Testimony was submitted tending to show that the globe was defective; that the defect was not obvious, but might have been ascertained by proper inspection, and that the defendant failed to make such inspection. The plaintiff had the right to assume that the defendant would exercise reasonable care to furnish him with a safe lantern, and it was not his duty to inspect the same for hidden defects. That duty rested upon the defendant, and the jury were justified in finding that it had not been performed.

Several objections are urged to the charge of the court and the refusal of requested instructions. We think the court's charge, supplemented by the requested instructions that were given, presented the law of the case with sufficient fullness and accuracy.

Appellee has a cross-assignment of error complaining of the verdict as not awarding him adequate compensation for the injury sustained. The record shows that he raised the point referred to by a motion for new trial, but does not show that the motion was called to the attention of, or acted upon by, the trial court. Nor did the plaintiff perfect an appeal. This being the condition of the...