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

• Citation: 50 S.W. 422
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. CALNON.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 29 March 1899
• Court: Court of Appeals of Texas

50 S.W. 422

MISSOURI, K. & T. RY. CO. OF TEXAS v. CALNON.¹

Court of Civil Appeals of Texas.

March 29, 1899.

Appeal from district court, Williamson county; R. E. Brooks, Judge.

Action by George J. Calnon against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff. Defendant appeals. Affirmed.

Appellee sued appellant to recover damages on account of personal injuries sustained by him, caused by an explosion of the boiler of one of appellant's engines. The following portions of the charge will explain the issues that were submitted to the jury: "(10) Now, if the jury shall find from a preponderance of the evidence that the plaintiff, Calnon, was in the employment of the defendant company as an engineer, as alleged in his petition, and that while engaged, in the performance of his duties as such engineer, in running one of defendant's engines, he was injured, as alleged in his petition, by the explosion of the boiler of said engine; and you further find that the steam gauge of said boiler was in a defective condition, so that it would not indicate the true amount of steam pressure on said boiler, or that the steam pops or safety valves upon said boiler, for the escape of steam when it reached a certain pressure on said boiler, were defective, and were not fixed or arranged so as to blow off and relieve said boiler from further pressure when the same reached a point beyond which it was unsafe to go; or if you find from the evidence that defendant had permitted a crust to be formed upon and over the crown sheet in the inside of the boiler, by the depositing of the solids held in solution in the water, which excluded the water from said crown sheet, and allowed the same to heat, and thereby become weakened and to give way; or if you find any one or more of the defects above set out, if any, to have existed at said time; and if you further find from the evidence that said defects above set out, or any of them, if there were any, caused said boiler to explode, and plaintiff to receive his said injuries, if he did receive any; and you further find that defendant knew, or by the exercise of ordinary care in inspecting said boiler and its appliances could have known, of said defects which caused said explosion, if you find there were any such defects, and that they did cause said explosion, prior to said explosion, and that the defendant was guilty of negligence, as that term has been heretofore explained to you, in not discovering said defects, if any, prior to said explosion, — then you will return a verdict for the plaintiff, unless you find the plaintiff was himself guilty of negligence which contributed to his injuries, as will be hereinafter explained to you, in which latter event you will find for the defendant. (11) You are further instructed that if you find from the evidence that plaintiff was injured, as alleged in his petition, by the explosion of said boiler, but you further find that said explosion was caused by the failure of plaintiff to keep said boiler sufficiently supplied with water, and to keep the crown sheet thereof covered with water, if he did so fail, and that such failure on plaintiff's part, if any, was negligence on plaintiff's part, as that term has been defined heretofore, which contributed to his injuries, then you will return a verdict for the defendant, even though you should find the defendant was guilty of negligence in allowing said steam pops or valves, or the steam gauge, to become defective, if any such defect exists, in any other particular. (12) You are further instructed that the defendant company was not bound to furnish plaintiff machinery and appliances absolutely safe for the work in which he was engaged, but was under a duty to exercise ordinary care to furnish to plaintiff machinery and appliances reasonably safe for such work, and a failure to exercise such degree of care by defendant would be negligence on its part; but, if defendant did exercise ordinary care in this respect, then it would not be guilty of negligence. (13) Now, if you find from the evidence that the defendant allowed a crust to accumulate on the inside of the boiler, so as to exclude the water from the crown sheet of said boiler, and cause it to heat and give way, or that the steam gauge or steam pops or safety valves were in a defective condition, as alleged by plaintiff, but you further find that such defects, or any of them, could not be...