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

• Decision Date: 26 October 1904
• Citation: 82 S.W. 787
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. SMITH.
• Court: Texas Court of Appeals

82 S.W. 787

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

Court of Civil Appeals of Texas.

October 26, 1904.

Appeal from District Court, Dallas County; Thos. F. Nash, Judge.

Action by J. W. Smith against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment in favor of plaintiff, defendant appeals. Reversed.

T. S. Miller and Thomas & Rhea, for appellant. Clark, Mathis & Freeman, for appellee.

FISHER, C. J.

This is a suit by appellee for alleged personal injuries received while in the employ of appellant in its yards as a coal heaver, caused by the bail of a coal bucket falling and striking him. The alleged negligence consists in furnishing the appellee with a bucket with a defective latch or catch in the rivets, and allowing it to remain in that condition, and failing to inspect the same. Verdict and judgment were in appellee's favor for $2,000. All the questions raised in the brief concerning the validity of the contract pleaded by appellant in bar of the plaintiff's action have been disposed of by the opinion of the Supreme Court (81 S. W. 22) in answer to the questions certified in this case. That opinion speaks for itself, and it is unnecessary for us to further notice these questions.

The seventh assignment of error complains of the following charge of the trial court: "You are instructed that it was the duty of the defendant to furnish the plaintiff with a coal bucket that was in a reasonably safe condition to work with, and to keep it in such condition. The plaintiff, on entering the work, had a right to assume that the coal bucket was in a good condition for the work on which he was engaged, and if the latch or catch of said bucket which held the bail up was not properly fastened, and if, on account of such improper and unsafe fastening, if you find same was improperly and unsafely fastened, the plaintiff was injured while engaged in the duties of his employment, you will find for the plaintiff, unless you find from the evidence that the plaintiff knew the catch for the bail was not in a safe condition or properly fastened, or that the condition of the catch, if it was unsafe and defective, was patent or obvious to him. If it was patent and obvious to plaintiff that the catch was unsafe, or he knew it was unsafe, he cannot recover." The objection to this charge, as stated in the seventh assignment of error, will be considered in connection with the objection urged to it in the proposition submitted under appellant's ninth, tenth, and eleventh assignments of errors.

The first portion of the charge informs the jury that it was the legal duty of the defendant to furnish the plaintiff with a coal bucket that was in a reasonably safe condition, and to keep it in such condition. We do not understand this to be a correct announcement of the rules of law on this subject. The duty of the master is to exercise ordinary care to furnish the servant with reasonably safe appliances to work with, and to exercise the same character of diligence in keeping them in that condition. Galveston, H. & S. A. R. Co. v. Gormley, 91 Tex. 398, 43 S. W. 877, 66 Am. St. Rep. 894. The subsequent portion of this charge, as quoted, in stating the combination of facts, the existence of which would authorize the plaintiff to recover, borders closely on the weight of evidence, if not directly so. It states to the jury that, if these facts exist, the plaintiff would be entitled to recover; thereby assuming that the failure of the railway company in the respect pointed out, and the want of knowledge upon the part of the plaintiff of the defective condition, would establish the actionable negligence of the appellant. The court should have left it to the jury to determine whether the failure of the appellant to do the things stated in the charge as quoted was...