Missouri, K. & T. Ry. Co. of Texas v. Crowder
| Decision Date | 18 November 1899 |
| Citation | 55 S.W. 380 |
| Parties | MISSOURI, K. & T. RY. CO. OF TEXAS v. CROWDER.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from district court, Grayson county; Howard Templeton, Judge.
Action by O. H. Crowder against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.
Head, Dillard & Muse and T. S. Miller, for appellant. C. B. Randell, for appellee.
This is a suit by appellee to recover for personal injuries caused to him by the negligence of appellant. The petition alleges that appellee was in the employment of the appellant in the capacity of brakeman, and while in the performance of his duties as such, in attempting to set a brake on a coal car belonging to the defendant, the staff of said brake broke, which caused him to fall from said car, whereby he was injured; that said brake staff was defective, and, if defendant had exercised ordinary care, it could have discovered and remedied said defect, and prevented his injury. Defendant denies the want of care on its part, and, further, that said defect was a latent one, and such as would not be discovered in the exercise of ordinary care. The plaintiff recovered, and defendant prosecutes this appeal.
The evidence shows that the plaintiff, on the 12th day of June, 1897, was in the employ of the defendant as brakeman, and while in the performance of his duties as such he was engaged in attempting to set a brake on a moving coal car in defendant's yards at Denton, Tex.; that the staff of the brake twisted in two, which caused him to fall off the rear end of the car, and strike his knee on the iron rail, which injured him. The brake rod had an old crack running angling across the rod, and extending about two-thirds across. The defect was not of such character as could have been discovered by ordinary observation. There is no evidence as to what care, if any, was used by defendant in discovering the defect.
The appellant complains of the charge of the court in instructing the jury, in the second paragraph of its charge, "that the servant has a right to presume that the master has performed his duty with ordinary care." The paragraph of the court's charge of which the foregoing is an extract instructs the jury as to the duty of the master to exercise ordinary care to furnish the servant with reasonably safe machinery, etc. The objection to said charge is that it is upon the weight of the evidence in the particular complained of. This objection is not tenable. The charge announced the correct principle, and it was not improper for the court to so inform the jury. Railway Co. v. Gordon, 11 Tex. Civ. App. 672, 33 S. W. 684, and authorities there cited.
The court charged the jury as follows: "Bearing in mind the foregoing instructions, if you believe from the evidence that the plaintiff, O. H. Crowder, was in the employment of the defendant, the Missouri, Kansas & Texas Railway Company of Texas, in the capacity of a brakeman, and that while he was engaged in performing the duties of his employment, exercising ordinary care for his own safety, trying to set a brake on one of defendant's coal cars in the city of Denton, the staff of said brake broke, and caused plaintiff to fall and be injured, and if you believe, further, from the evidence, that the said unsafe condition of said brake staff could have been discovered and remedied by the defendant before plaintiff received his injury, if the defendant had exercised ordinary care to furnish a brake staff on said car reasonably safe for use, then, if you believe all these facts from the testimony, you will find for the plaintiff." There was no charge presenting the issue of contributory negligence on the part of plaintiff in failing to discover the defect, further than is embraced in the foregoing paragraph of the court's charge. The appellant objects to the foregoing...
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