Mo. Pac. R. R. Co. v. Lyde

• Decision Date: 17 October 1882
• Docket Number: Case No. 1279.
• Citation: 57 Tex. 505
• Parties: THE MISSOURI PACIFIC R. R. CO. v. JOSEPH T. LYDE.
• Court: Texas Supreme Court

57 Tex. 505

THE MISSOURI PACIFIC R. R. CO.

v.JOSEPH T. LYDE.

Case No. 1279.

Supreme Court of Texas.

Oct. 17, 1882.

APPEAL from Anderson. Tried below before the Hon. Peyton F. Edwards.

The facts sufficiently appear in the opinion.

Greenwood & Gooch, for appellant.

I. A master operating railroad machinery is under obligation to use only ordinary and reasonable care to keep it in repair, or to discover latent defects therein, but is not bound to use the highest possible degree of care, and it was error to so charge in this case. Railway Co. v. Dunham, 49 Tex., 185; Railway Co. v. Doyle, Id., 191; G., H. & S. A. R. R. Co. v. Delahunty, 53 Tex., 209; Cooley on Torts, 557; Boone's Law of Corporations, sec. 267.

II. The court erred in charging the jury to consider “the expense of medical attendance,” in estimating damages in this case, in the absence of proof of any liability paid or incurred by appellee, or the value of that rendered. Bailey v. Mills, 27 Tex., 506; Blanchet v. Davis, 3 Tex., 142;Harris v. Finberg, 46 Tex., 85.

III. Where plaintiff below alleged that he, plaintiff, “is poor and without means with which to engage in trade or commerce,” in a suit for damages, and as a ground for recovery, it is error to refuse to strike the language out, when excepted to. The above stated allegation was in the petition of plaintiff below. The defendant below filed a special exception and moved to strike out the allegation. The exception was overruled by the court, and it was excepted to. Wright v. Wright, 6 Tex., 3-16; K. P. R. R. Co. v. Pointer, 12 Am. Law Reg., p. 630.

IV. A railroad corporation operating machinery is under obligation to use only ordinary care to keep it in repair; and when this duty is performed, it is not responsible for injuries to servants inflicted by reason of defects therein, of which neither it nor its managers had notice; and as the evidence in this case shows that the appellant had used ordinary care to detect defects in the cars which injured appellee, and no apparent defects were discovered before the injury, it was error to refuse a new trial asked for on the ground that the verdict was not supported by the evidence, and was contrary to the law and evidence. Railway Co. v. Dunham, 49 Tex., 185; Railway Co. v. Doyle, Id., 191; Railway Co. v. Delahunty, 53 Tex., 209; Cooley on Torts, 557; Boone's Law of Corporations, sec. 267; Faulkner v. Erie Railway Co., 49 Barb. (7th Am. Law Reg., p. 510); Shearman & Redfield on Negligence, secs. 93 and 99; Field's Law of Damages, note to sec. 186.

Gammage & Gregg, for appellee.

I. The charge of the court to the jury is full and complete, and fully sustained by the law, and indeed goes further in favor of the defendant company than the law authorizes, and the defendant cannot be heard to complain. See authorities quoted by appellant. Railway Co. v. Dunham, 49 Tex., 185; G., H. & S. A. R. R. Co. v. Delahunty, 53 Tex., 209; Cooley on Torts, 557; also 550, 551; 1 Redfield, 517.

II. The supreme court will not reverse a cause by reason of error in the charge, unless it appears to be a material error, to the prejudice of the party complaining; and when it is manifest from the whole charge, taken together, that a particular isolated sentence operated no injury, the supreme court will not reverse the judgment. T. & P. R. W. Co. v. Murphey, 46 Tex., 368; G., H. & S. A. R. R. Co. v. Delahunty, 53 Tex., 212, and authorities cited therein; R. D. Loper et al. v. Jas. Robinson, 54 Tex., 510;T. & P. R. W. Co. v. Chapman, Texas Law Rep., Vol. I, No. 4, for August, 1882, p. 305; H. & G. N. R. R. Co. v. Randall, 50 Tex., 260.

III. There was no proof offered or introduced to prove the allegation in regard to plaintiff being “poor and without means with which to engage in trade or commerce,” and by an inspection of the record it will be found that it was only preliminary to the balance of the allegation in the petition, and was immaterial.

IV. A railroad company is liable to an employee injured by the negligence of a superior fellow-servant whose directions he was bound to obey; a master is liable for an injury sustained by his servant by reason of defective appliances (bumpers or draw-heads) put in his hands by himself or his agents, unless he shows that he has been diligent and circumspect in the employment of such agents and in the selection and preservation of such appliances; or that the servant knew of the defect and continued to use the appliances without notifying the master of the defect; or that the servant was himself guilty of contributory negligence in such case. Cowles v. Richmond & Danville R. R. Co., 84 N. C., 309. In above quoted case, the plaintiff was injured by reason of defective “draw-heads or bumpers,” as in the case at bar. See, also, Hough v. R. R. Co., 100 U. S., 213;Gibson v. Pacific R. W. Co., 46 Mo., 163. Employers are held to the fullest measure of duty, and must furnish employees with safe appliances, etc. Wood's Master & Servant, §§ 418-428; Pierce on Railways, 370; Brabbitts v. N. W. R. R., 38 Wis., 289; 77 Ill., 365.

BONNER, ASSOCIATE JUSTICE.

The first error assigned is that “The court erred in its charge to the jury in this: The jury were told in the charge that defendant is bound to protect his servants from injury by reason of latent or unseen defects, so far as human care and foresight can accomplish the result; and erred in refusing the first charge requested by the defendant, for the reason that this measure of duty is greater and more stringent as between master and servant than that prescribed by law, and that requested in said first charge, viz., ordinary care.”

That portion of the charge objected to reads as follows: “A master is bound to the exercise of reasonable care in reference to all the appliances of the business, and is bound to protect his servants from injury therefrom by reason of latent or unseen defects, so far as human care and foresight can accomplish that result; but he does not stand in the relation of an insurer to the servant against injury, and can only be held chargeable when negligence can be properly imputed to him.”

This will be considered in connection with the seventh assigned error, that “The verdict of the jury was contrary to and against the evidence in this: The evidence established that the defect complained of was not known to the defendant, nor to its managers, nor even to any of its servants; that proper and careful precautions and regulations were existing and used to discover defects (and repair them) by frequent inspections and examinations by competent servants; that the machinery complained of was of the usual and proper kind, and properly constructed and apparently sound; that if any defect existed it was not known before the very moment of the injury; and therefore there was no evidence to show that the defendant or its managers knew or ought to...