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

• Decision Date: 08 November 1899
• Citation: 53 S.W. 386
• Court: Texas Court of Appeals
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. SHERMAN.

53 S.W. 386

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

Court of Civil Appeals of Texas.

November 8, 1899.

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

Action by William I. Sherman against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

Fiset & Miller, for appellant. John W. Parker, for appellee.

FISHER, C. J.

This is an action by the appellee against the appellant for injuries sustained by the explosion of a locomotive, which at the time he was operating as engineer, in the employment of the railway company. The grounds of negligence alleged on the part of the railway were that it negligently permitted the crown sheets in the engine to be burned, and thereby weakened, and that they were originally too thin to stand the ordinary pressure allowed to the boiler, and that the bolts holding the sheets in position were eaten away by acids, and thereby reduced in strength, and many of them were broken, and that the safety or pop valves were out of order, and failed to relieve the boiler of steam pressure, after the ordinary pressure had been reached; that, if these were not the causes of the explosion, then it resulted from the unsafe and defective condition of the boiler, due to the negligence of the defendant, which was or should have been known to the railway company, but which was not known to the plaintiff. The railway company, in defense, pleaded that it was the duty of the appellee to keep the boiler and the crown sheets covered and supplied with water, which he negligently failed to do, thereby permitting the crown sheets to become overheated and softened, causing them to give way; that it was the appellee's duty to inspect the engine and appliances connected therewith, in order to ascertain if any defects existed, and it was his duty to discover such defects, and upon failure so to do he would be guilty of contributory negligence, that he assumed the risk of explosions caused by such defects, as he could have discovered them; that there were premonitory symptoms occurring before the explosion, of a nature calculated to indicate that an explosion was likely to result, which were not heeded by the appellee, and therefore he was guilty of negligence; that the defects alleged were not discoverable by the exercise of a reasonable inspection upon the part of the appellant, and that the appellee had means under his control by which he could have prevented...