Missouri, K. & T. Ry. Co. v. Wood

• Decision Date: 07 May 1896
• Citation: 35 S.W. 879
• Parties: MISSOURI, K. & T. RY. CO. et al. v. WOOD.
• Court: Texas Court of Appeals

35 S.W. 879

MISSOURI, K. & T. RY. CO. et al. v. WOOD.

Court of Civil Appeals of Texas.

May 7, 1896.

Appeal from district court, Trinity county; J. M. Smither, Judge.

Action by Wirt N. Wood against the Missouri, Kansas & Texas Railway Company and another. There was a judgment for plaintiff, and defendants appeal. Reversed.

Jos. E. Hill, Sam T. Robb, and B. F. Bean, for appellants. J. P. Stevenson and Adams & Adams, for appellee.

PLEASANTS, J.

This is the second appeal to this court by the defendants in this suit from the judgment rendered against them for the plaintiff. Upon the former appeal, which is reported in 25 S. W. 741, the judgment of the lower court was reversed and the cause remanded for error in the charge of the court. Upon the last trial of the cause the court gave the following instructions to the jury: "If the plaintiff had such knowledge of the unsafe condition of the roadbed or track, or the car coupling or drawhead described, at the time and place of the accident (if you shall believe, by a preponderance of the evidence, that the same, or either of them, were so unsafe as described in plaintiff's petition, at the time and place as alleged), as made it obvious, plain, and patent that he could not uncouple said car from the tender of the engine without danger of injury to himself, but that, notwithstanding such knowledge, he went in between said car and tender for the purpose of uncoupling same, the plaintiff in this suit cannot recover, and you will find for the defendants." "But if you believe that the plaintiff did not have such knowledge of the unsafe conditions of said roadbed or track, or of the coupling or drawhead of said car, at said time and place, or before (if you find said roadbed or track, or said coupling or drawhead, was unsafe), or if you find that he did have such knowledge, but believed that said roadbed and track, and said coupling and drawhead, was not so unsafe as to make it plain, obvious, and patent to the plaintiff that he could not uncouple said car and tender without danger of injury, but that he uncoupled, or attempted to uncouple, said car and tender, reasonably believing that he could do so with safety, notwithstanding such conditions, by the exercise of prudence and caution on his part, and that such prudence and caution were exercised, and that plaintiff was injured as alleged by reason of negligence on the part of the defendants, the plaintiff would be entitled to recover." This portion of the charge is assigned as error by the appellants, and the assignment, we think, must be sustained. These instructions assume that a servant who knows of a defect in an implement furnished him by his master may use the implement, and, for injuries resulting to him by reason of such defect, may hold the master liable, unless the defect makes patent that the use of the implement will be with danger to the servant. Such is not the law in this state, at least. The general rule, which, like other general rules, has...