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

• Decision Date: 30 November 1910
• Citation: Houston & T. C. R. Co. v. Alexander., 132 S.W. 119, 103 Tex. 594 (Tex. 1910)
• Parties: HOUSTON & T. C. R. CO. v. ALEXANDER et al.
• Court: Texas Supreme Court

132 S.W. 119

HOUSTON & T. C. R. CO. v. ALEXANDER et al.

Supreme Court of Texas.

November 30, 1910.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Eliza E. Alexander and others against the Houston & Texas Central Railroad Company. Judgment of the Court of Civil Appeals (121 S. W. 602) affirming a judgment for plaintiffs, and defendant brings error. Reversed and rendered.

Baker, Botts, Parker & Garwood and Head, Dillard, Smith & Head, for plaintiff in error. John H. Sharp and J. H. Wood, for defendants in error.

WILLIAMS, J.

The deceased, whose death was the occasion of this action by the defendants in error for damages, was killed by a fall from the tender of one of defendant's engines at Sherman. There is no dispute or uncertainty whatever about the facts. It was the duty of deceased to put fuel oil in the oil tank of the engine at night when it came into Sherman from the South. His custom, and that of all who performed such service, was to enter the cab of the engine, ascend from its gangway to the top of the tender, or watertank, and walk along it until reaching a wooden box, to be described presently, then to step on the box and from it to the top of the oil tank, which stood on top of the watertank, but did not cover its entire width. After the oil had been let into the tank, the descent was made over the same way. In making the descent on the night in question, the deceased stepped from the top of the oil tank to that of the box and, his foot slipping, fell to the ground and was fatally hurt. The box was one of two, exactly alike, which were parts of the regular equipment of such engines, and were fastened beside the oil tanks to the top of the watertank, or tender. It was lower than the top of the oil tank, so that it was convenient to use it as a step in going up and down. It was built to contain tools used by the engineer, and, in order to turn water when it rained, its covering consisted of two lids which formed an apex over the center of the box and descended very gradually to the eaves, like a gently sloping gable roof. Grease and dirt accumulated on the lids from several causes, viz., from the feet of men walking over them with oil or grease and dirt on their shoes, from the occasional spilling of oil in filling the tank, and from the escape of it through air and gas vents or pipes in the tank and the settling of dust or cinders in running, and it is asserted that this condition was the cause of Alexander's foot slipping. All the witnesses say that the boxes were like those used on oil burning engines generally, that all of them soon came to be in the condition described, and that there was nothing unusual in this respect in the one on which Alexander slipped. He had been employed in the railroad service for 16 years, had been car inspector and repairer, had occasionally supplied engines with oil in daylight, and had been regularly engaged in doing that service at night six weeks or two months. On account of the use of oil as fuel for the engines, it with dirt or cinders was necessarily on and about other parts of engines and tanks where men had to pass, and the evidence shows that there was nothing peculiar in this particular in the condition of the top of the box. There is some very indefinite testimony to the effect that one of the engineers when he saw fresh grease on the box would wipe it off, and that at Ennis, the next division point south of Sherman, the employés "sometimes wiped off the tool boxes and all the top of the tank."...