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

• Decision Date: 22 June 1910
• Citation: 130 S.W. 1037
• Court: Texas Court of Appeals
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. GILBERT.

130 S.W. 1037

MISSOURI, K. & T. RY. CO. OF TEXAS v. GILBERT.

Court of Civil Appeals of Texas.

June 22, 1910.

Rehearing Denied October 12, 1910.

Appeal from District Court, Bastrop County; Ed. R. Sinks, Judge.

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

J. H. Miley and Paul D. Page, for appellant. S. L. Staples, John Lovejoy, and J. W. Parker, for appellee.

KEY, C. J.

On November 20, 1907, H. V. Gilbert was in the employ of the Missouri, Kansas & Texas Railway Company of Texas in the capacity of locomotive fireman, and while coaling his engine at Granger, Tex., he was injured by the falling of the coal chute, and this suit was brought for the recovery of damages on account of such injury. The defendant pleaded a general demurrer, certain special exceptions, a general denial, assumed risk, and contributory negligence. There was a jury trial, which resulted in a verdict and judgment for the plaintiff for $5,000, and the defendant has appealed.

The first, second, third, and fourth assignments of error complain of the action of the trial court in overruling appellant's general demurrer and certain special exceptions to the plaintiff's petition. Under those assignments but one proposition is submitted, which, in substance, is that, in order to state a cause of action, it was necessary for the plaintiff to allege in his petition that the defendant knew, or by the use of ordinary care ought to have known, of the alleged defective condition of the coal chute. There was no such specific allegation in the plaintiff's petition, but it did allege that the appliances for operating the coal chute in coaling engines were old, worn, and insufficient for the purposes intended, and were in an unsafe and defective condition, and that the defendant was guilty of negligence in allowing them to be as described. Neither the general demurrer nor the special exceptions addressed to the petition pointed out the omission now complained of, and therefore, if the petition was sufficient as against a general demurrer, the assignments under consideration must be overruled. The general rule is that, in an action by a servant against his master to recover for injuries caused by defective or dangerous appliances or places, it must be alleged that the master knew, or ought to have known, of the alleged defects; but as against a general demurrer a direct averment of actual or constructive knowledge is not necessary where it is necessarily implied from the facts alleged. 26 Cyc. p. 1390, and authorities there cited. As against a general demurrer, a pleading is to be liberally construed, and all reasonable inferences deducible from the facts alleged are to be...