Houston, E. & W. T. Ry. Co. v. Roach

• Decision Date: 28 October 1908
• Citation: 114 S.W. 418
• Parties: HOUSTON, E. & W. T. RY. CO. v. ROACH.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

114 S.W. 418

HOUSTON, E. & W. T. RY. CO. v. ROACH.^†

Court of Civil Appeals of Texas.

October 28, 1908.

Rehearing Denied December 16, 1908.

Appeal from District Court, Harris County; C.E. Ashe, Judge.

Action by R.B. Roach against the Houston, East & West Texas Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood and Lane, Jackson, Kelly & Wolters, for appellant. Heidingsfelder & Heidingsfelder, Lovejoy & Parker, and Fisher, Sears & Campbell, for appellee.

RICE, J.

Appellee, Roach, plaintiff below, filed this suit against appellant for the recovery of damages for personal injuries alleged to have been sustained by him while a passenger upon appellant's railway occasioned by the explosion of a drum to a Baker heating apparatus, which was used for heating the coach in which he was riding. He alleged: He was a passenger on appellant's railway from Houston to Humble on the evening of January 3, 1905. That the car upon which he took passage was heated by an apparatus consisting of a stove, drum, and pipes therefor, which were in such an unsafe and defective condition, and were so negligently handled by the servants in charge of said train, that the same exploded, causing steam, water, dirt, and other contents thereof to strike plaintiff in and about the head and neck with great force and violence, seriously injuring him in the muscles and nerves thereof and in the drum of both of his ears, whereby his hearing in the left ear was totally destroyed and the hearing in the right ear greatly impaired. He averred that he was unable to specify with greater particularity the cause of the bursting or explosion of said heating apparatus, but that when ordinary care is used in the construction, maintenance, and operation of such appliances, they do not burst or explode, and that the defendant, having had exclusive possession thereof, both before and after said explosion, should and did know the cause thereof. That, in consequence of said explosion and the injury inflicted upon him, he was put in great fear of life and limb, had partially lost the use of the muscles controlling his lower jaw, that the hearing of his left ear was entirely destroyed, and that of his right ear greatly impaired, and that he had been caused to suffer great mental and physical pain by reason thereof. And that said injuries were permanent and incurable, lessening his earning capacity in the future, to his great damage, etc. Defendant replied by general demurrer and general denial. A jury trial resulted in a verdict and judgment thereon in favor of the plaintiff in the sum of $6,500, from which judgment this appeal is prosecuted.

The first assignment of error complains of the action of the court in overruling defendant's objection to the following question asked the witness Bonewitz: "If those heaters were in proper condition and all the apparatus and pipes connected with those safety valves, and all are in proper condition, they won't explode, will they?" To which the witness answered: "Well, I don't suppose they will." Appellant insists by its proposition thereunder that where the answer of a witness testifying as an expert is not based upon facts or circumstances connected with the accident, from which, through his peculiar knowledge, he is able to give an opinion, but is merely the statement of a conclusion, based upon the accident itself, and without stating the facts or reasons for such conclusion, the same is inadmissible. By reference to the statement of facts it appears that no objection was made to the above question and answer until after the question had been answered. Then the following objection was made by defendant's counsel: "I want to object to that question. I think it goes beyond the range of human knowledge." By reference to the bill of exceptions reserved by appellant to this testimony, it is shown that defendant by its counsel objected to the same upon the ground "that it was beyond the range of human knowledge for any person to tell whether or not, under such conditions, said heater would have exploded, and that said testimony was incompetent"; but the bill does not affirmatively show whether this objection was made before or after the answer of the witness to said question. It appears that this testimony was elicited upon cross-examination of this witness, who had given a comprehensive and detailed statement of the construction and working of these heaters, and the record fails to show that any objection was made to said testimony on the score that said witness was not an expert, or that he was not qualified to give a correct and scientific opinion, or that he was merely stating a conclusion; but, in discussing this objection, appellant treats said witness as an expert, both in his assignment and brief. There was no motion made to exclude this testimony. In this condition of the record we must hold that what occurred, as shown by the statement of facts on the point in question, would control and govern the bill of exceptions. Wiseman v. Baylor, 69 Tex. 66, 6 S. W. 743; Ramsey v. Hurley, 72 Tex. 200, 12 S. W. 56; Wright v. Solomon (Tex. Civ. App.) 46 S. W. 58. Following this rule, the only objection that we can consider is that made on the trial as shown by the statement of facts (Rector v. Hudson, 20 Tex. 236; Kimmarle v. Railway Co., 76 Tex. 686, 12 S. W. 698; Stephens v. Motl, 81 Tex. 118, 16 S. W. 731), and which objection we hardly think was a legal one, but, if so, it came too late, and, in the absence of a motion to exclude, we hold that appellant is not now in position to complain of the admission of said testimony, and overrule said assignment.

The court in its charge, among other instructions, gave the following: "If you should believe from a preponderance of the evidence that the plaintiff, on or about the 3d day of January, 1905, and while a passenger, as alleged, on one of defendant's trains, received injuries substantially as by him alleged, and that said injuries were caused by the bursting of the drum connected with the heating apparatus in said car, and that said heating apparatus was then and there under the management and control of the defendant company, and its agents and servants, and was in an unsafe and defective condition, or badly and unskillfully handled and managed by the defendant's servants in charge of the train, and that in the ordinary course of things such drum would not have burst if the defendant company and its agents and servants in charge thereof and having the management thereof had used proper care with respect to the condition of said heating apparatus, or the handling and management thereof, and if you further find and believe from the evidence that the alleged bursting of the drum was directly caused and occasioned by such alleged unsafe or defective condition of the heating apparatus or alleged unskillful handling thereof by the defendant's said servants, and you further believe that such alleged unsafe or defective condition of the heating apparatus, or such alleged unskillful handling of the heating apparatus, constituted negligence on the part of the defendant company, or its said agents or servants (as the term negligence has heretofore herein been defined), and you further believe from the evidence that as the direct and proximate result of such negligence, if any, plaintiff received injuries substantially as by him alleged, then find for the plaintiff and assess his damages as hereinafter instructed in the fifth paragraph hereof." Appellant insists that said charge was erroneous, because, first, it contends that there was no evidence whatever that said heating apparatus, at the time of said accident, was in an unsafe and defective condition; second, because there was no evidence whatever that said apparatus had been badly and unskillfully handled and managed by defendant's servants in charge of the train, nor that said agents and servants had not used proper care in the inspection of said heating apparatus or in the handling and management thereof; and, third, because there was no evidence that the bursting of said drum was caused and occasioned by any unsafe or defective condition of the heating apparatus or by any unskillful handling thereof by the defendant's said servants.

Briefly summarized, the evidence discloses: That the heating apparatus in use by appellant consisted of a stove and connections, known as a "Baker heater." This stove had a furnace inside of it, and above it and connected therewith was a drum or cylinder. Coils of pipe were placed inside of the furnace of the stove, but extended around and from it on both sides of the car. Above the furnace of the stove is located said expansion drum. It is made of cast iron, is about 10 inches in diameter, and about 20 inches high, the bottom being about 12 inches above the stove, and it extends upwards to within 4 inches of the roof of the car. The pipe from the furnace enters this drum at the bottom, but does not go through; but another pipe extends from the top of the drum to the roof of the car connecting with the safety valve on the outside thereof. The water, being pumped into this system of pipes from below, rises up about halfway in the drum, and when fire is started in the stove the heat is transmitted to the water in the pipes and to the drum, thereby causing steam in the drum and the pipes by which the car is heated. When the valve is working properly, any excess of steam which is generated in the drum escapes therefrom through said valve, by which the same is regulated. That the valve was an automatic contrivance, and that the appliance was easily managed. There was a rubber ball used on the safety valve, which was intended to expand with heat and thereby permit the escape of steam through the valve, but which could be screwed up so tight that it would burst, and would not be of any service. That if it did burst there would be an opening...