Gulf, W. T. & P. Ry. Co. v. Abbott

• Decision Date: 21 December 1893
• Citation: 24 S.W. 299
• Parties: GULF, W. T. & P. RY. CO. v. ABBOTT.
• Court: Texas Court of Appeals

Page 299

24 S.W. 299

GULF, W. T. & P. RY. CO. v. ABBOTT.

Court of Civil Appeals of Texas.

December 21, 1893.

Appeal from district court, De Witt county; S. F. Grimes, Special Judge.

Action by S. E. Abbott against the Gulf, West Texas & Pacific Railway Company for personal injuries sustained while in defendant's employ. From a judgment for plaintiff, defendant appeals. Reversed.

Proctor & Proctor, for appellant. Pleasants & Bailey and A. B. Davidson, for appellee.

WILLIAMS, J.

The court below charged the jury that "railroad companies are charged with a high degree of care at all times in the operation of their roads and in the conduct of their business;" and, further, that "railway companies are required by law to furnish their employes and servants with good material and suitable and proper appliances for performing the duties required of them." Both of these instructions are assigned as errors, and, standing by themselves, they would be well calculated to mislead the jury. The requirement of a "high degree of care" is not very definite. In a sense, the instruction may be said to be true; for, in comparison with the degree of care required of persons operating agencies less dangerous than those employed in the business of railroading, the degree of care required in the use of the latter is high; but the definite standard, and therefore the proper one to be given to the jury, is the care used by persons of ordinary prudence in the business under investigation. The second instruction, exacting the use of "good" and "suitable" material and appliances, is, we think, erroneous. If the terms "good" and "suitable" be understood to mean safe or perfect, — that is, without defect, — the rule laid down exacts too high a degree of care of the defendant. The master is required only to use reasonable care and diligence — that is, such as men of ordinary prudence employ in such matters — to ascertain that the material and appliances furnished to the servant are reasonably safe for use. It might be said that material on which this degree of care had been exercised without the discovery of defects would be pronounced by a jury to be good and suitable, and would therefore meet the requirement of the charge. But it is by no means certain that the language would be thus understood. It would rather be interpreted to mean that there must be, in fact, no imperfections in the material in use at the time of the injury complained of; when the law would not make the master responsible for unknown imperfections, which proper care on his part could not have discovered. Another instruction in the charge, and a special charge given at the request of the defendant, laid down the correct rule on the subject, and it is unnecessary for us to decide whether the judgment should be reversed, were there no other errors. Should the case be tried again, the duty of the master should be defined as it was in the special charge, and the objectionable expressions omitted from the charge.

The charge on the measure of damages is assigned as error, and was, we think, erroneous. It...