Houston & T. C. R. Co. v. Patrick

• Citation: 109 S.W. 1097
• Court: Court of Appeals of Texas
• Decision Date: 16 April 1908
• Parties: HOUSTON & T. C. R. CO. v. PATRICK.<SMALL><SUP>*</SUP></SMALL>

109 S.W. 1097

HOUSTON & T. C. R. CO. v. PATRICK.^*

Court of Civil Appeals of Texas.

April 16, 1908.

Rehearing Denied May 7, 1908.

Appeal from District Court, Grayson County; J. M. Pearson, Judge.

Action by C. H. R. Patrick against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood and Head, Dillard & Head, for appellant. James P. Haven, W. J. Mathis, E. J. Smith, and McGrady & McMahon, for appellee.

WILLSON, C. J.

The suit was by appellee to recover damages for personal injuries alleged to have been sustained by him in the performance of his duties as one of appellant's coach cleaners at Denison, as the result of appellant's negligence. In accordance with the verdict of a jury a judgment for $6,000 was rendered in appellee's favor.

At the time he was injured, appellee had been in appellant's service as a coach cleaner about six months. His service for the company was performed at night, between 7 o'clock in the evening and six o'clock in the morning. One of his duties was to supply with water tanks used in passenger coaches. The tanks were filled from the tops of the coaches. To enable him to discharge this duty, appellant furnished appellee with a lantern, with a ladder to be used in getting on top of the coaches, and with a rubber hose about one inch in diameter attached to a water plug in its yard and long enough (35 or 40 feet) to reach from the plug to the openings to the tanks in the tops of the coaches. About 4:30 o'clock on the morning of April 23, 1906, while it was yet dark, appellee, in the performance of his duty to supply the tanks thereof with water, went onto the top of one of appellant's passenger coaches, and, by means of the hose furnished to him by appellant for the purpose, filled a tank at one end of the coach. He then walked, dragging the hose after him, along the top of the coach to near the opposite end thereof, where the opening to the other tank was situated, for the purpose of filling it. The hose was old and worn. It had been broken in several—one witness testified as many as eight—places, and repaired by cutting smooth the broken ends, bringing them together over a piece of iron piping, and then securing the ends with wire. To get sufficient of the hose on top of the coach to reach the tank opening, appellee gave the hose a pull, when two of its parts suddenly separated at one of the places where it had been repaired, causing appellee to lose his balance and to fall from the top of the coach to the ground, a distance of from 18 to 20 feet, whereby his arm and leg were broken, and whereby he suffered other injuries. The verdict of the jury involves a finding by them that appellant was guilty of negligence in the particular submitted to them by the trial court's charge proximately causing the injuries suffered by appellee, and that appellee himself was without fault in connection with such injuries. The testimony, we think, is sufficient to support the findings of the jury, and we adopt said findings as our own.

By its first assignment of error, appellant complains of the action of the court in refusing to peremptorily instruct the jury to return a verdict in its favor, and by its second assignment it urges that the verdict of the jury was contrary to the evidence. In support of these assignments, appellant insists: (1) That the hose was a simple appliance, which any prudent person would have furnished to his employé to work with without previously inspecting it; (2) that the evidence overwhelmingly showed that it was appellee's duty to inspect, and if it needed it repair, the hose; (3) that the evidence showed that, if there was such a defect in the hose as rendered it dangerous to use, appellee, if he did not know of such defect, was negligent in failing to know it; and (4) that the evidence showed that appellee was negligent in his manner of handling the hose, in that he dragged it across the car to fill one of the tanks, instead of getting off the coach with it after filling the tank at one end and getting upon the coach at its other end for the purpose of filling the tank there. We do not think these contentions should be sustained. Appellant was bound to use ordinary care to provide for appellee's use reasonably safe and suitable instrumentalities to enable him to fill the tanks, and became responsible to him for injuries suffered by him without fault on his part in the discharge of his duty to it to fill the tanks, proximately caused by its failure to furnish such instrumentalities. 4 Thompson, Neg. §§ 3986, 3987; 2 Labatt, Mas. & Ser. §§ 22a, 23; 20 Am. & Eng. Ency. Law (2d Ed.) p. 71. It cannot be said, as matter of law and without reference to the use to be made of it, that, because a rubber hose is a common and simple appliance, the master, when furnishing such hose to his servant for use in the discharge of his duties as such, does not owe to him the duty to use ordinary care to see that it is reasonably suitable and safe for the servant's use in the service to be performed by him. Railway Co. v. Schuler (Tex. Civ. App.) 102 S. W. 785. "In furnishing a tool of any kind," said the Supreme Court in Drake v. Railway Co., 89 S. W. 408, "the master is bound to use ordinary care for the safety of the servant who uses it." The diligence which will amount to ordinary care must be measured by the circumstances of each particular case as it arises. If it were to be used by the servant in an ordinary garden in watering a flower bed in daylight, it might well be said that the master was not lacking in care in furnishing to his servant for the purpose an old, rotten hose, the broken parts of which had been spliced together in from four to eight places; but as matter of law it should not be so said, when such a hose is furnished to the servant to be used in the nighttime, in filling a tank on the top of a passenger coach. In the one case an ordinarily prudent person might well conclude that there would be no occasion to so use the hose as to cause it to break or to pull apart at places previously broken, and he also might well conclude that, should it break or pull apart, his servant's life or limb would not thereby be endangered. But here the hose was furnished to the servant to be used in the nighttime, on top of a coach 18 or 20 feet above the ground. Full of water it had to be carried or dragged by the servant to the top of the coach, so necessarily taxing its strength, more or less, and after it was gotten to the top of the coach the servant there had to adjust it in the opening to the tank. In furnishing such a hose for such a use, it cannot be said that a reasonably prudent person would not have contemplated either that the hose would not break or pull apart, or, if it did, that the safety of the servant thereby would not be endangered. Whether a reasonably prudent person, under those circumstances, would have furnished to his servant such a hose was properly a question for the jury. Adams v. Railway Co. (Tex. Sup.) 102 S. W. 906. The case (Railway Co. v. Larkin, 98 Tex. 227, 82 S. W. 1026, 1 L. R. A. [N. S.] 944) relied upon by appellant as a support for its contention is unlike this one. There, while the servant was cleaning a lantern, its globe broke, injuring him. The undisputed evidence showed that the lantern had been purchased from reliable manufacturers and was of good and standard make. The servant had used it several days, during which time it was in his exclusive possession and control. It was his duty to keep it clean and to see that it was in a proper condition for use. The defect in the globe, it seems, was a latent one. Here the hose was old and rotten, and had been broken again and again. According to appellee's testimony, he had never used it before, and was ignorant of its condition. It was furnished to him to use for the first time in the nighttime. He had not had and did not have the right to its exclusive use and control. It was not his duty to repair and keep it in a proper condition for use. In the face of such material differences in the facts of the two cases, it cannot be said that the conclusion reached in the Larkin Case, that the master did not owe to the servant a duty to inspect the lantern, requires a holding in this one that the hose was such a common and simple appliance as relieved appellant of the duty of inspection which otherwise would have rested upon it, in the discharge of its duty to use reasonable care to furnish him with a reasonably safe and suitable appliance for use in filling the water tanks.

As to other contentions made by appellant under these assignments, it is sufficient to say that there was evidence that it was not a part of appellee's duty to either inspect or repair the hose, that it was placed for his use in filling the tanks,...