Houston Belt & Terminal Ry. Co. v. Woods

• Decision Date: 30 May 1912
• Court: Texas Court of Appeals
• Parties: HOUSTON BELT & TERMINAL RY. CO. et al. v. WOODS.<SMALL><SUP>†</SUP></SMALL>

149 S.W. 372

HOUSTON BELT & TERMINAL RY. CO. et al. v. WOODS.^†

Court of Civil Appeals of Texas. Galveston.

May 30, 1912.

On Rehearing, June 20, 1912.

Error from District Court, Harris County; Norman G. Kittrell, Judge.

Action by Rosa Woods against the Houston Belt & Terminal Railway Company and another. There was a judgment for plaintiff, and defendants bring error. Affirmed.

Andrews, Ball & Streetman and A. L. Jackson, all of Houston, for plaintiffs in error. John Lovejoy and Presley K. Ewing, both of Houston, for defendant in error.

McMEANS, J.

This is an action by Rosa Woods, hereinafter called plaintiff, against the plaintiff in error, Houston Belt & Terminal Railway Company, a railroad corporation operating its railroad in this state, hereinafter called defendant, and the St. Louis, Brownsville & Mexico Railway Company, to recover damages for injuries resulting in the death of her husband, John Woods, while in the employment of defendant in the capacity of boiler washer, but at the particular time of his injuries from which death resulted was engaged in giving oil to an engine tank under the orders of a superior.

Plaintiff alleged, in substance, that John Woods, at the time of the injuries complained of, was serving defendants in the capacity of a boiler washer in and around the roundhouse of defendants in Houston, and under the immediate personal supervision, control, and direction of defendant's officers and superior employés, and was commanded by one of such superiors to fill with oil one of defendant's engines, and that, in obedience to said command, he proceeded to do so in the usual and customary manner of the conduct of the business of defendants, and in the only manner available to him; that in filling said engine with oil it was necessary for him to go on the tank of the engine, and take with him his lantern so as to enable him to see the hole into which the oil was to run, and when the tank was sufficiently full, and to give the signals for proper location of such holes with respect to the pipe through which the oil was to be conducted; and, after ascertaining the position of said oil hole, and causing it to be properly located by the usual signals in such case with respect to said oil pipe, he placed his lantern down several feet away, and proceeded to run the oil into said engine in the ordinary and usual manner of such service in the business of the defendants, and each of them so far as he knew or had reason to believe; but, after said oil had run in for a few minutes, the gas therefrom took fire from the flame in said lantern, which was so constructed as to admit of that result, whereupon he was instantly enveloped in smoke and flame, and by the explosion blown into the air, and thereby so injured that he afterwards died. Plaintiff further alleged that it was practicable for defendants, and they had the opportunity, and in the exercise of ordinary care ought, to have furnished electrical lights or lighting for the work in question, or other lights which would not admit of the flame thereof being imparted to the escaping gas, and that such lights were necessary in order to be sufficiently or reasonably safe for such work, but that defendants furnished only such lights as John Woods was using at the time, and which were liable to ignite such oil and do serious injury to him, and were insufficient and not reasonably safe for the work, and that thereby defendants were negligent toward him. Plaintiff further alleges that said John Woods had on other occasions been required, in the absence of regular employés therefor, to fill engine tanks at night with oil which he had done similarly to the manner in which he was acting on the occasion in question by placing the lantern, as he did on said occasion, several feet away from the oil hole, say a full arm's length, all without objection, and with the knowledge and acquiescence of defendants' said foreman, and with no instruction as to the particular danger and how to avoid it, or other adequate direction; that said John Woods was inexperienced in such work, of which defendants knew, or were chargeable with notice, so that he was ignorant of the particular danger, and that such danger was not obvious to a person of average intelligence of his experience, and the defendant, in failing to give said John Woods instruction or warning that was reasonably sufficient to enable him, as a man of ordinary intelligence, to understand such danger, were negligent towards him, and that, in commanding and directing him to do said work at the time, place, and under the circumstances as done, were negligent towards him. Plaintiff further alleged that the danger was not so obvious or apparent that an ordinarily prudent man with such experience and knowledge as he had would have disobeyed or declined and suffered discharge, and that, notwithstanding said lights were not reasonably safe, a person of ordinary care would have continued in the employment with knowledge of such defect and danger, and that defendants knew of such defect, and the superiors intrusted with authority to remedy such defect knew thereof within a reasonable time before such injuries; that said negligent acts and omissions of defendants proximately caused the aforesaid injuries and death of the said John Woods.

Defendant answered by general denial and special pleas of assumed risk and contributory negligence of the deceased. The plaintiff dismissed as to the St. Louis, Brownsville & Mexico Railway Company.

The trial before a jury resulted in a verdict and judgment for plaintiff for $3,500, from which defendant has appealed. The mother and stepfather of the deceased were parties plaintiff, but as to them a judgment on an instructed verdict was rendered for defendant.

Findings of Fact.

At the time John Woods received the injuries which resulted in his death he was in the employment of defendant in the capacity of boiler washer, but when so required by the servants of defendant, who were his superiors, it was also a part of his duty to assist in filling the locomotive tanks with fuel oil. His duties were performed in the nighttime. The oil with which the locomotive or engine tanks were filled was contained in a large reservoir or tank, situated conveniently near the railroad track, and the oil was taken from the latter and into the tank of an engine by means of a pipe or spout through which it flowed. The reservoir being stationary, and the pipe or spout being practically so, it was necessary to place the engine tank in such juxtaposition to the reservoir as that the pipe through which the oil flows could be placed into the opening in the engine tank, commonly called the "manhole," and, when this has been done, a valve is opened and the oil passes into the tank. In order to place the engine tank in a proper place to so receive the oil, it is necessary to signal the hostler operating the engine to which the tank is an adjunct when and where to stop and place the tank, and in the nighttime these signals are made by a lighted lantern furnished by the defendant to its employés, such as John Woods was, for the purpose; and without such use of a lantern, or light of some kind, the tank could not be properly placed or "spotted" to receive the oil. Defendant had no other system of lighting at the reservoir than by lantern, which were the ordinary lanterns in use on its railroad, although an electric lighting system would have been feasible and inexpensive, and would have been safe in so far as any danger of setting fire to the oil or of gas generated therefrom is concerned, and the establishment of such a system of lighting would have obviated the necessity of spotting the tanks by signals given with lanterns. After the injury and death of John Woods, such a system of lighting was installed by the defendant. The contact of the oil with the atmosphere as it passes out of the reservoir into the engine tank generates gas which is highly inflammable and readily combustible when coming in contact with a flame. The lanterns in use were open flame lanterns, and are not constructed in such a way as to prevent the gas, when so generated, coming into contact with the flame. The defendant had promulgated a rule against going on or about the reservoir with lighted torches, lanterns, or lamps, and the witness Reynolds, John Woods' superior, testified that: "When I gave him (Woods) the position as boiler washer, I cautioned him about the danger of the oil,...