Industrial Lumber Co. v. Johnson

• Decision Date: 14 February 1900
• Citation: 55 S.W. 362
• Parties: INDUSTRIAL LUMBER CO. v. JOHNSON.
• Court: Texas Court of Appeals

55 S.W. 362

INDUSTRIAL LUMBER CO. v. JOHNSON.

Court of Civil Appeals of Texas.

February 14, 1900.

Appeal from district court, Newton county; Stephen P. West, Judge.

Action by Daniel Johnson against the Industrial Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed.

Ford & Crawford, for appellant. W. L. Douglass and Votaw & Martin, for appellee.

KEY, J.

In November, 1898, appellant was engaged in operating a railroad, in connection with its lumber business, and appellee was employed by it in connection with the operation of one of its trains. He acted in the capacity of conductor, fireman, and brakeman; and on the 24th day of said month, while attempting to uncouple cars on the train under his control, his thumb was mashed by a coupling pin which he was attempting to pull out of the drawhead. For the injury thus sustained, appellee brought this action; and from a judgment in his favor, appellant has appealed.

The drawhead was defective, unsafe, and needed repairing, and appellee's thumb was caught between it and the pin, and injured. The testimony supports the finding that appellant was guilty of negligence in not repairing the drawhead, but the undisputed testimony, coming from appellee himself, shows that he had knowledge, long before and at the time of his injury, of the defects in the drawhead; and having such knowledge, and consequently knowing that the use of the drawhead in that condition would necessarily involve the risk of such an injury as resulted, he must be held to have assumed such risk when he continued to use the appliances in that condition, unless he brings himself within the exception to the general rule, by showing a promise by the master to repair the defective appliances. This he alleged in his petition, and attempted to establish by testimony. The strongest testimony on that subject is that given by himself, which is as follows: "Ten or twelve days before I got hurt, we had a wreck, and went to couple the engine onto the derailed cars; and Mr. Adams objected to us making the pull, because it would pull the drawhead clear through, and I said I hoped so, `then you will have it fixed'; and Mr. Adams said, `Lintz, I want you to fix that thing right away;' and I remarked that it ought to be made out of oak, and Adams said that pine was as good; and Lintz said that he would take the measure and fix it right away. And that was ten or twelve days before I got my hand mashed. Lintz took the measure with a rule, and I said, `Look up there, Mr. Lintz, and see how the beams are shaped.' Adams, Singletary, and Lintz were all there. He (Lintz) told me he was going to fix it right away. I had been working there, but it was getting worse and worse all the time. They said they were going to fix it, and I went to work relying on it. Lintz said he would fix it right away. * * * I called attention to the defect in the drawhead, because Adams objected to my pulling with it. He said it would pull it clear in two; and I said, `That is just what I want to do, because you will fix it then.' We had a wreck there on Saturday, and this was on Sunday, when we were trying to put the cars back, and Mr. Adams was afraid we would pull the drawhead out. He had reference to the weakness of the thing, and was afraid it would cause delay there if we undertook to pull. It struck me that it was the first time he knew it was out of fix. He did not want us to pull the cars up out of the ditch, because it might pull the drawhead out. I knew it could not pull it out, because the draft was on the other end. I did not explain to Mr. Adams what I knew...