Int'l & Great N. R.R. Co. v. Doyle

• Decision Date: 01 January 1878
• Citation: 49 Tex. 190
• Parties: INTERNATIONAL AND GREAT NORTHERN RAILROAD COMPANY v. THOMAS DOYLE.
• Court: Texas Supreme Court

49 Tex. 190

INTERNATIONAL AND GREAT NORTHERN RAILROAD COMPANY

v.THOMAS DOYLE.

Supreme Court of Texas.

1878.

APPEAL from Harris. Tried below before the Hon. James Masterson.

Doyle sued to recover damages for an injury to his hand, received in operating a hand-car, while in appellant's employ as a section hand on the road. It was alleged that the injury complained of resulted from the negligence of defendant in failing to provide a safe and proper hand-car for the use of the laborers on the section. The petition alleged that the handle to the crank on the hand-car which he was furnished to use, was a piece of iron or steel, “eight square,” three-quarters of an inch in diameter, sixteen inches long, without any wooden movable case around it to grasp with the hands in turning the crank; that in turning the crank this handle turned in the hands, and a pair of “gloves had been provided” for the use of the person who should work that side of the car, to keep the hands from being chafed; that said handle was put in the crank as a substitute for the one (such as was on the other side) with a wooden case, in which the iron rod turned when the handle was grasped and the crank turned.

The petition alleged that petitioner, “in the performance of his duty, under the direction of said foreman or boss, in utter ignorance of the danger he was incurring, put the said mittens on his hands, and whilst so propelling the said handcar, &c., the mitten on his right hand became entangled with and fastened to said handle, &c., and his thumb was torn off, without any fault of petitioner.” Again: “Petitioner was ignorant that the said hand-car was dangerous, by reason of said handle being so fixed and arranged, until after the happening of the event aforesaid, and was in no way blamable for the result of the action of said handle.” Again, in an amended petition, the plaintiff alleged that “he was wholly ignorant of any danger incurred by using the hand-car”; that he “used it under the direction of the section boss”; that he “used it in a careful, prudent manner,” and “in no manner contributed to his injuries by any carelessness or negligence on his part.”

The defendant filed (1) general exceptions; (2) special exceptions, that the petition did not aver that the plaintiff did not know, or by the use of ordinary care could have known, the defects complained of; (3) a general denial; and (4) a special plea, that the hand-car was the implement given to plaintiff and others to work with, and if it was out of repair or unsafe, the same was known to him, or by ordinary case could have been known.

The court charged, in effect--

1. That the company must have proper implements, but was not liable for all omissions of its servants, by which a coservant is injured.

2. That if plaintiff knew, or could reasonably have known, of the defect equally with the company, and continued in its employment, he could not recover.

3. That plaintiff would be presumed to know of the defect, if by ordinary attention he could see it.

4. If defendant's agent in charge knew of the defect, and plaintiff did not, or could not, discover it by the use of ordinary attention, and was not himself guilty of negligence, he should recover.

A verdict was returned for plaintiff for $2,250, on which judgment was rendered, and defendant appealed.

The plaintiff below showed, by his own testimony, that he was employed, and began work in the capacity alleged, on the 9th of March, 1874; that the hand-car is used by the section men to ride on and carry their working tools from place to place, and he rode on it on the 9th and 10th, and on one of these days worked at the handle at which he was injured on the 11th. One of the handles was an iron spindle, that revolved within a wooden shield, that remained stationary within the hands of the operator. The other, and that at which he was injured, had been lost, and in place of it was an eight-square rod of iron or steel, about three-fourths of an inch in diameter, and about sixteen or eighteen inches long, which revolved within the hand when operating the car. This was made fast in the crank, and the injury was not caused from the handle breaking or giving way in any particular. He admits that this handle was open to view, in no way concealed or covered, and that he knew its character and condition as well before as after the injury. He found a pair of leather gloves, or mittens, on the car, which the men used when operating at the crank at which he was injured; but he had not used them previous to the time he was injured, and did not know how they came there, but had never known a railroad company to furnish gloves to its laborers. He further stated that the crank-and-handle cars are now going out of use, and that at the time of the accident there were on the car, besides himself, the foreman and three others of his colaborers.

The next and only witness for the plaintiff as to the injury, testified that he had been in same employment since February 9, 1874, and was on the car at the time of the occurrence. He described the make of the car and the handles, substantially the same as the plaintiff, showed that it had two cranks and handles, and was operated by one man turning at each at the same time. When he began work on that section, he found the handles the same as when plaintiff was injured, and he also found the glove on the car, but did not know who furnished it. He supposed the glove was used by the men to keep their hands from chafing, and had frequently worked at the handle at which plaintiff was injured. Says he never knew any one hurt at the handle at which the plaintiff was injured, except him; but a man named McDonald had been hurt at the other handle, by getting his sleeve caught in it. He further stated that he heard the foreman of the section report the hand-car to the road-master, and threaten to throw it in the ditch, because the men were afraid to work it, and gave as a reason, that a man had been hurt by having his sleeve caught when he was operating the handle opposite to that at which the plaintiff was injured.

For the defense, the section foreman testified, that he had been in same employ on same section since 1st of February, 1874. A section is usually six or seven miles long. Each section has a hand-car for the use of the men employed on it, which is furnished, as are the working tools, by the railroad company, and is operated by the hands using it as their business may require. The car and working tools of each section are under the care of the section foreman. At the time of this accident he had four men on the car with him, this plaintiff being one, and the witness was operating one handle, and the plaintiff the other. The handle at which plaintiff was hurt was on the crank when witness came to work on that section, and had never come out or given way, nor did it give way when the plaintiff was injured. He also found the gloves on the car when he was first employed; don't know how they came there; sometimes they were used, and sometimes not; but knows that appellant does not furnish gloves for its hands to work in. He says that in operating the car, the section men take it by turns, and he has worked at both handles. Says he reported the car to the road-master as a slow-running car--so much so, that it delayed him in the prosecution of his work; but states expressly that he never reported it as dangerous. The handle was in full view, where any one using it could see it, and the plaintiff was in the regular discharge of his duty when injured. These are the material facts in proof on the trial.

Baker & Botts, for appellant, contended, that if appellee saw and knew the character of the handle by which he was injured, and with this knowledge continued to use it, he thereby assumed the risk, and cannot recover; citing Whart. on Neg., secs. 214, 217; Greenleaf v. Ill. Central R. R., 29 Iowa, 14;Vicksburg and Meridian R. R. v. Wilkins, 47 Miss., 404;Devitt v. Pacific R. R., 50 Mo., 302;Fifield v. R. R. Co., 42 N. H., 240;Laning v. N. Y. Central R. R., 49 N. Y., 534;Wright v. R. R. Co., 25 Id., 562;Moss v. Johnson, 22 Ill., 642;63 N. Y., 449.

W. P. & E. P. Hamblen and Crank & Webb, for appellee.--We hold that the petition sets out a cause of action, and was rightly sustained by the court below. It alleges “that petitioner had been but two days in defendant's employ, and was wholly ignorant of any danger incurred by using said hand-car; that he used the same under the direction of said section boss, as was his duty; that he used the same in a careful and prudent manner, and in no manner contributed to his injuries by negligence.”

And we are sustained by the following authorities:

“If a person of ordinary prudence would not have believed that the servant could, in the regular discharge of his duties, be injured by the defect, the servant may disregard it, without losing the right to complain, if while pursuing his ordinary course he suffers from such defect.” (Shear. & Red. on Neg., sec. 95, cites Snow v. Housatonic R. R., 8 Allen, 441; Perry v. Marsh, 25 Ala., (N. S.,) 659.)

“Nor even where the plaintiff sees that the defendant has been negligent, is he bound to anticipate all the perils to which he may possibly be exposed by such negligence, or even to refrain absolutely from pursuing his usual course, on account of risks to which he is probably exposed by the defendant's fault. Some risks are taken by the most prudent men; and the plaintiff is not debarred from recovery for his injury, if he has adopted the course which most prudent men would take under similar circumstances.” (Shear. & Red. on Neg., sec. 31.)

We consider it a well-settled principle of law, that the employer is bound to furnish his servant with suitable instruments and means with which to carry on his work. (Coombs v. New Bedford Cord Co., 102 Mass., 572; The Chicago and Northwestern R. R. v. Swett, 45 Ill., 197; Same v. Jackson, 55...