Missouri, K. & T. Ry. Co. of Texas v. Lynch

• Decision Date: 11 November 1905
• Citation: 90 S.W. 511
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. LYNCH.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

90 S.W. 511

MISSOURI, K. & T. RY. CO. OF TEXAS v. LYNCH.^*

Court of Civil Appeals of Texas.

November 11, 1905.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Action by D. D. Lynch against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

Rehearing denied December 2, 1905.

T. S. Miller, A. L. Beaty, and C. H. Smith, for appellant. Wolfe, Hare & Maxey, for appellee.

BOOKHOUT, J.

This was a suit for damages on account of personal injuries sustained by the plaintiff while acting as fireman on an engine pulling one of the defendant's freight trains, resulting in a verdict and judgment for $12,500, from which this appeal is prosecuted.

Conclusions of Fact.

Appellee, a fireman on one of appellant's engines, was injured while shaking the grates of the engine, when suddenly the shaker bar attachment became disconnected from the grates, precipitating him backward through the open space between the engine cab and tender on the ground, resulting in serious and permanent injuries to him, whereby he sustained damages in the amount found by the jury. The attachment for shaking the grates is a thick rod about three or four feet long, running down the end of the cab by the head of the boiler down through the deck, and fastens underneath by a bolt to a kind of cross-arm, which fastens to the grates in the fire box. The fireman shakes the grates by means of a lever attached to the top end of this rod, which lever, when not in use, folds down by the side of the boiler head. When it is necessary to shake the grates, the lever would be raised up horizontally, and, taken hold of with both hands, you would proceed to work it backwards and forwards, which sometimes requires little force, but sometimes a great deal of force. The shaker bar is about two inches thick, and is strapped to the boiler head to keep it in its place. There was a bolt about one inch thick, by which it was connected at the lower part with the grates. After the accident an examination of the shaker bar disclosed that the bolt which connected the shaker bar with the grates was out. Appellee did not assume the risk of injury resulting from the defective shaker bar. A proper inspection of the engine by the agents and employés of appellant would have disclosed the defect in the shaker bar attachments, which defect rendered the engine unsafe, and proximately caused the injuries to appellee.

Conclusions of Law.

Error is assigned to the court's action in overruling defendant's motion for new trial, in that it is contended that the evidence was wholly insufficient to show that the shaker bar attachment gave way and came loose on account of any negligence of defendant. For the same reason it is insisted that the court erred in refusing to direct a verdict for defendant, as requested by its special charge No. 1. The bolt which held the shaker bar to the grates was about one inch thick, and had a large head on it. On the other end were threads on which a nut was turned, and below the nut there was a hole in the bolt, through which a cotter key was passed and then spread. If the bolt was all right, it could not work out, nor could it be broken by any strength one could place against it. If the cotter key is out, and the nut off, in shaking the grates the bolt will work out. After the accident it was discovered that the bolt was out. The bolt must have been out when the accident occurred. It is clear that the absence of this bolt was the cause of the accident. At the time of the accident the engine was returning to Denison from a trip to Muscogee. It left Denison on the 19th of September, 1903, and the accident occurred on September 21st. A witness testified that he inspected the engine at Denison on the 19th of September, but on cross-examination he stated he had no recollection of inspecting this particular engine, that he only inspected during the daytime, that the company had no night inspector, that he was the only inspector at that time, that it was a very busy time with the railroad, and that many engines went out without inspection. The evidence shows that if the cotter key was out, and the nut off of the bolt, the bolt would work out. There is very little wear on it, and it is not liable to break. On the trip prior to this the appellee was down under the engine cleaning the ash pan, and noticed the shaker bar attachment, and did not discover anything wrong with it. We are of the opinion that the evidence fails to show an inspection of this engine prior to its starting on this trip, and that an inspection would have disclosed the fact that its shaker bar attachments were out of repair. By the use of ordinary care the railway company could have had knowledge of this defect and remedied the same, and its failure to do so was negligence. A defect in the engine, which an inspection would have disclosed, raises the issue of negligence. The duty of inspection did not rest upon appellee. He had the right to assume that the company had used ordinary care to provide him with a reasonably safe engine. The duty to inspect was upon the company, and, the evidence failing to show an inspection, the jury could infer that in this respect it was guilty of negligence, and that such negligence was the proximate cause of appellee's injuries. S. A. & A. P. Ry. Co. v. Lindsey (Tex. Civ....