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

• Decision Date: 28 January 1899
• Citation: 50 S.W. 601
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. NORDELL.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

50 S.W. 601

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

Court of Civil Appeals of Texas.

January 28, 1899.

Appeal from district court, Grayson county; Don. A. Bliss, Judge.

Action by A. Nordell against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

Appellee, as plaintiff, filed his original petition in the district court of Grayson county, on March 22, 1897, against appellant, as defendant, to recover damages for personal injuries received by plaintiff while in the employment of defendant, as engineer, on one of its locomotive engines, on February 15, 1897, consisting, among other things, in the mashing of plaintiff's foot, necessitating amputation of a large portion thereof; and afterwards, to wit, on April 25, 1898, plaintiff filed his first amended original petition, alleging that, by reason of said injuries, and since the filing of the original petition, a second amputation was rendered necessary, and plaintiff's right leg was amputated between the ankle and the knee, and the leg, knee, and hip were rendered stiff, and plaintiff's nervous system and all his vital parts were greatly shocked and injured, and that all his injuries were permanent, causing great and continuous pain, and necessitating the payment of doctors' bills amounting to $500. The negligence alleged was the failure on the part of the defendant to use ordinary care in furnishing an engine reasonably safe for use, and that the engine furnished by defendant for plaintiff's use was improperly constructed, out of repair, and defective, and the throttle, valves, cylinder, and appliances for holding and using the steam, and propelling and controlling the movements, of said engine, were defective, which caused the engine to move and run over plaintiff's foot; that the condition of the engine was known to defendant, or would have been known by the use of ordinary care, but was unknown to plaintiff; that the throttle and valves were defective had been known to plaintiff shortly before the accident, but that he had reported same to defendant's proper representatives, whose duty it was to attend to such matters, and that they promised to repair same, and that repairs would be made at once, and as speedily as possible, and as soon as said engine was turned in for repairs; which promises plaintiff believed and relied upon, and plaintiff believed that the engine had been repaired before his injury, and at the time he was injured believed that it was in proper condition. Plaintiff alleged that his time, worth $150 per month, had been, and would always continue to be, lost. Defendant pleaded the general denial, and especially pleaded contributory negligence of plaintiff and his fellow servants, and that the risk was one of the assumed risks of plaintiff's employment, and that plaintiff had notice of the defect; and that plaintiff knew, or ought to have known, that the promises, if any, had not been complied with, and negligently placed himself in a position of danger, and that plaintiff did not rely upon said promises. A trial before a jury resulted in a verdict and judgment in favor of appellee, on April 28, 1898, for the sum of $9,500. The railway company has appealed.

T. S. Miller and Head, Dillard & Muse, for appellant. C. B. Randell, for appellee.

FINLEY, C. J. (after stating the facts).

A. Nordell, appellee, was employed by the railway company, as an engineer, doing switching in the yards of the railway company at Denison, on the 15th day of February, 1897. On that day, about 11 or 12 o'clock, he received the injuries complained of in this suit. He had been working in the capacity indicated about one month. The engine which he handled in performing the duties assigned to him was engine 138. He discovered, within a few days after he took charge of the engine, that the throttle valve was out of repair and was leaking steam. He reported this fact promptly to the company, and the latter promised to repair the defect. This promise was not observed, and he continued to report it daily and to receive new promises to repair. He relied upon their promises, and remained in the employment and use of the engine. On the evening before the day of the accident, he again reported the condition of the engine to the foreman, and urged that the engine be repaired that night, and he received the promise that it should be done. Just at this time Engineer Murphy, who relieved Nordell, came up and inquired what engine he should use, and was told by the foreman to take No. 140. The foreman told Nordell that 138 would go in for repairs that night, and that the throttle valve would be repaired. He saw 140 put upon the "going-out track," and 138 going in on the dump track for the fire to be removed. At 7 o'clock next morning Nordell relieved Murphy, and took charge of engine 138, which Murphy was then using. He believed when he took charge of the engine that it had been repaired; but this was not true. The leaking of the throttle valve occurs inside the boiler, and is not discoverable to one handling the engine, except by the movements of the engine. When there is quick, heavy work being done, the defect would manifest itself in the action; but the engine may be used for hours in ordinary work, without the engineer noticing that the throttle valve is leaking. The effect of this condition is to put the engine without the ordinary methods of control, and causes it to move when the machinery is adjusted so as to hold an engine in good condition stationary. In working the engine that morning there were no indications that the defect still existed, and Nordell, believing that it had been repaired, was not apprehensive of any danger from it. They were not very busy that morning, and had light work. Nordell found that the engine's pistons needed packing, and he sent the fireman for some rubber to replace that which was worn out. This was his duty. The brace had been lost off the brake shoe and he was engaged in replacing it when the injury occurred. The piston which comes out of the brake cylinder was about to drop off on account of the brace being gone. It comes from the piston, and bolts onto the brake shoe, and he had to push this brace back into the cylinder, which requires considerable force. He had a steel bar to pry with, and placed his foot against the track rail as a brace; and, while in this position, the engine was started by reason of the leak in the throttle valve, and passed over his foot, crushing it. The engine could not have been put in motion, except by human hands, had it not been for the leak of the throttle valve. Had Nordell known that the throttle valve was still leaking, he would also have known that his position was perilous, and would not have assumed it. We have given this detailed statement of the manner in which the accident happened in order that the questions hereafter considered may be clearly understood.

The first, second, third, and fourth assignments of error are directed against the charge of the court.

1. It is contended that the court erred in the third paragraph of the charge, in stating the duty of the master in furnishing the servant machinery with which to perform his duties. The charge is not challenged as being an incorrect statement of the law, but that it is not applicable, because the plaintiff admitted in his petition that he knew of the defect,...