Mexican Nat. R. Co. v. Finch

• Decision Date: 10 October 1894
• Citation: Mexican Nat. R. Co. v. Finch, 27 S.W. 1028, 8 Tex. Civ. App. 409 (Tex. App. 1894)
• Parties: MEXICAN NAT. R. CO. v. FINCH.
• Court: Texas Court of Appeals

Page 1028

27 S.W. 1028

MEXICAN NAT. R. CO. v. FINCH.

Court of Civil Appeals of Texas.

October 10, 1894.

Appeal from district court, Webb county; A. L. McLane, Judge.

Action by Mary Finch against the Mexican National Railroad Company for injuries resulting in the death of her son. Judgment was rendered for plaintiff, and defendant appeals. Modified and affirmed.

Dodd & Mullally and Denman & Franklin, for appellant. F. B. Earnest and E. A. Atlee, for appellee.

NEILL, J.

This is an appeal from a judgment of $6,000 recovered by appellee against appellant for negligently killing Fred High, her son.

Conclusions of Fact.

On the 1st day of March, 1893, Ed Kelly was foreman of the boiler shops of the Mexican National Railroad Company, in Laredo, Tex., and had been for nearly two years prior to that time. William Faulk at that time was an apprentice in the boiler makers' department of said company, in its shops in Laredo, where he had been in such capacity about two years also. Fred High was at that time a laborer or "helper" in said shops, where he had been as such employé about three months prior to that date. Kelly's duty, as such foreman, was to see that the men in that department did their work, to assign the work to be done to the men and their apprentices, and to give them helpers, and manage the department generally; the mechanics, apprentices, and helpers in his department being under his control. When an apprentice and helper in the department are working together on a given job, the helper is under the direction of the apprentice, to the extent that he must assist in the work as the apprentice tells him. But an apprentice can neither employ nor discharge a helper.

The way the company changed a water tank into an oil tank was by taking off connections at the ends of the tank, reaming out the holes, which are about two inches in diameter, screwing in cast copper plugs, and driving them up both inside and outside, thus forming a rivet. When a sand hole was discovered in one of these plugs after it has been so fixed in a tank, the proper way to repair it was to drill out the hole in the plug, thread it, and screw in a wrought copper plug, thus putting a plug within a plug, and hammer each end thereof inside and outside. About a month prior to the date above mentioned a number of water tanks of the appellant were changed to oil tanks in the manner above stated. They were so changed by William Clark, another boiler maker's apprentice, at the Mexican National Railroad shops in Laredo, Fred High being his helper. Clark reamed out the holes, High assisting in pulling the wrench. Clark then hammered up the plugs both inside and out; High holding a bar against them outside while Clark did the hammering inside, and holding it on the inside while Clark hammered outside. It was dark in the tanks, and when High went in there he always took a light in with him. In doing this work it was his duty, under the rules of the company, to do as Clark, the apprentice, directed him, which he did. A tank which had been used in the water service of appellant had, in the manner indicated, been changed to an oil tank, and filled with crude petroleum oil, when a leak was noticed through a sand hole in the copper plug which had been placed in the tank to change the character thereof. An employé had the oil pumped out, and notified an agent of the company to take the tank away, on account of the generation of gas in it from the oil. Within an hour after the notification the tank was moved to the yard of appellant's shops in the city of Laredo.

On the next day, which was the 1st day of March, 1893, after the removal of the tank, the apprentice William Faulk, who was then 17 years old, and had never repaired a tank before, was sent by Ed Kelly, with Fred High as his helper, to repair the leak in the tank, Kelly having told the apprentice what was necessary to do. Faulk drilled and tapped a half-inch hole in the copper plug with a ratchet and drill, High helping him by pulling the ratchet. Kelly was present when the hole was tapped, and then told High to hold a bar against the plug on the inside of the tank, while Faulk drove it up from the outside. When the hole was drilled, Faulk went to the shops to get the copper plug, upon which a thread had been cut by another apprentice to fit into it; and High went back, under Kelly's instructions, to carry the tools they had used in drilling the hole. When Faulk returned with the plug, he carried a torch to the tank, because Kelly had told him, when he got the plug screwed in, to hammer it out both inside and out, and it was too dark in the tank to see to work without a light. Kelly saw him as he was carrying the light there, and told him to be careful with it when he got inside the tank; and High was not present then, nor was such caution heard by, or repeated or given to, him. Kelly was not present at the tank after the parties returned, High then being directly under the control and direction of Faulk in finishing the work. When Faulk returned to the tank, High was there. The plug was then screwed in the hole by the apprentice. About an hour before, Faulk had opened the dome hole, and there saw about an inch of oil in the bottom of the tank, which, he testified, was very black, and emitted a strong smell. As to whether High was informed by Faulk as to the oil being in the tank, the testimony is conflicting; Faulk, the only witness on the subject, testifying in one place "I didn't tell High there was oil in the tank, but he saw oil at the leak," and afterwards, "When I took off the dome cap, Kelly was present, and I told him there was oil in the tank;" and again, "When I opened the dome cap; and told Kelly that there was oil in the tank, High was standing at the end of the car upon which the tank was resting, and I don't know whether he heard me mention the oil or not." After Faulk screwed the plug in, he told High to go in the tank, and see if it was in far enough, and High, in obedience to his instructions, went in through the dome hole, which is midway between the ends, pulling the torch in after he had entered; and in about a minute afterwards an explosion, occasioned by the ignition of the gas from the torch, occurred, of such force as to blow High out of the tank, whereby he was severely injured, from which injuries he died three days afterwards. Kelly testified that "the plug needed no hammering, and that he gave no directions to any one to go in the tank." Thomas Milan, a machinist who was superintendent of motive power and machinery of appellant, testified that "the plug needed no hammering." From the evidence collated in this paragraph, we conclude (1) that the tank, at the time it was repaired, was charged with explosive gas; (2) that the fact was known to appellant; (3) that Fred High...