Hines v. Flinn
| Citation | 222 S.W. 679 |
| Decision Date | 20 May 1920 |
| Docket Number | (No. 1119.) |
| Parties | HINES v. FLINN. |
| Court | Texas Court of Appeals |
Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
Suit by E. L. Flinn against Walker D. Hines, Director General of Railroads, and the El Paso & Southwestern Railway Company of Arizona. From a judgment for plaintiff against defendant Director General, such defendant appeals. Affirmed.
W. M. Peticolas and Del W. Harrington, both of El Paso, for appellant.
Hudspeth, Wallace, Harper & Berkshire, of El Paso, for appellee.
This suit was brought by appellee, Flinn, against appellants, Walker D. Hines, Director General of Railroads, and the El Paso & Southwestern Railway Company of Arizona, to recover damages for personal injuries alleged to have been sustained by him while in the employ of appellants as a section foreman on one of its lines of railroad in New Mexico. The facts are substantially without dispute and are as follows:
On February 3, 1919, Walker D. Hines was the Director General of Railroads, including the El Paso & Southwestern Railroad Company, and was then operating the lines of said company in New Mexico in interstate commerce, and Flinn was section foreman on the railroad at Victoria, N. M. On the day named it became necessary and a part of Flinn's duty to repair a part of the railroad track and switch, and to make the repairs it was necessary for Flinn to cut or remodel a tie plate, and in order to do so it became necessary to use a chisel and strike it with a chisel hammer or sledge; the hammer having been furnished appellee and other employés by appellant for that purpose. While Flinn was holding the chisel another of appellants' employés was striking it with the sledge, and while doing so the sledge slivered and a piece of the sledge flew off, striking Flinn in the eye, and caused the injuries of which he complains. The negligent act assigned was that the sledge furnished him was unsafe because it was too hard, brittle, not properly tempered, and for that reason when used in striking on another hard instrument it broke or slivered; that appellants knew, or by inspection could have known, of the defective condition of the sledge; and that Flinn was ignorant of its condition.
Appellants answered by general denial; denied Flinn's injury and the extent of it as alleged; alleged that the sledge or hammer was a common and ordinary tool, which, if defective, its defects were plain and apparent to Flinn, and that it was Flinn's duty to observe and know of its defects and not to use the sledge if it was in the condition as alleged; that if Flinn was injured same was due to ordinary risks incident to his employment, and that Flinn assumed the risk of using the sledge in the manner and in the condition it was in; that Flinn was section foreman, and if any inspection of the hammer was necessary to determine its condition it was his duty to make the inspection; that appellants' instructions contained in its book of rules made it Flinn's duty to keep all tools in first-class condition, and when same needed repair to send same in to place designated by the head of the department and to make requisition for a new one. The case was dismissed as to the railroad company, and a verdict and judgment rendered against appellant, Walker D. Hines.
Appellant's insistence here is that the court was in error in refusing to peremptorily instruct the jury to return a verdict for appellant. While the error assigned is discussed under three propositions, they are to the effect that, where the evidence is uncontroverted and to the effect that the duty of inspection and keeping the tools and appliances in proper condition is on the employé, the employé complaining of injury by reason of such tools being in bad order or condition, and this defect being the proximate cause of the injury, such employé cannot recover; that where the duty of inspection is with the employé he is presumed to know the defects, if any, in the tools which it is his duty to inspect and keep in repair or replace with new or other tools, and that under such conditions the appellee assumes the risk, as a matter of law, of using such defective tool. Without stating all the evidence, we will state briefly such as seems relevant to the contention made.
Appellee testified: In his 25 years' experience he had occasion to handle mauls and chisels of that character; from his experience, when a tool has been broken he can judge whether or not it is properly made; had had...
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