El Paso & S. W. R. Co. v. Foth

• Decision Date: 13 February 1907
• Citation: 100 S.W. 171
• Parties: EL PASO & S. W. R. CO. v. FOTH.
• Court: Texas Court of Appeals

100 S.W. 171

EL PASO & S. W. R. CO. v. FOTH.

Court of Civil Appeals of Texas.

February 13, 1907.

Rehearing Denied March 6, 1907.

Appeal from District Court, El Paso County; J. M. Goggin, Judge.

Action by W. D. Foth against the El Paso & Southwestern Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Patterson, Buckler & Woodson, for appellant. Jno. L. Dyer, for appellee.

FLY, J.

Appellee instituted this suit for damages, alleging that on August 26, 1905, he was in the service of appellant as a locomotive fireman, and that while he was on a locomotive, engaged in his duties as fireman, the water glass on the locomotive exploded and destroyed his left eye. It was alleged that the water glass was defective in being too thin to withstand the pressure of water and steam; that it was not properly adjusted; that it had not been inspected and tested; and that the glass was not provided with a proper screen or guard so as to hold the glass in case of an explosion. Appellant answered that it was impossible to protect the water glass so as to prevent explosions and possible injury; that appellee knew this when he entered appellant's service; and that the glass was liable to burst and fly to pieces, and, so knowing, he continued in appellant's employment, and therefore had assumed the risk and was guilty of contributory negligence. A trial by jury resulted in a verdict and judgment for appellee in the sum of $4,000.

The water glass mentioned in the petition is a tube made of glass one-half or five-eighths of an inch by 10 or 12 inches, and is placed on each locomotive to indicate how much water is in the boiler. The water glass stands straight up in front of the boiler head, in the cab of the engine, and is connected with the water in the boiler by a valve at the top and one at the bottom, and through these valves water from the boiler enters the water glass. The water glass that exploded was protected by metal shields, with slots, or openings, in them, running the full length of the glass, about one-half an inch wide, there being four of the slots. It was shown that other railroads used a wire shield that went over the glass, the meshes being about one-eighth of an inch in size, making about 64 meshes to the square inch. The piece of glass that destroyed appellee's eye could not have passed through the meshes of the screen used by other railroads to protect the water glasses. Appellee, while in discharge of his duty as a fireman, had his left eye destroyed by the explosion of the water glass throwing a piece of glass into the eye. If the glass had been properly protected, the injury to appellee would not have occurred. Appellee did not assume the risk arising from the use of the water glass, protected as it was, nor was he guilty of contributory negligence on account of remaining in the service of a company using such appliances.

The Twenty-Ninth Legislature passed the following act:

"Be it enacted by the Legislature of the State of Texas:

"Section 1. That in any suit against a person, corporation or receiver operating a railroad or street railway for damages for the death or personal injury of an employé or servant, caused by the wrong or negligence of such person, corporation or receiver, that the plea of assumed risk of the deceased or injured employé where the ground of the plea is knowledge or means of knowledge of the defect and danger which caused the injury or death shall not be available in the following cases: First. Where such employé had an opportunity before being injured or killed to inform the employer or a superior entrusted by the employer with the authority to remedy or cause to be remedied the defect, and does notify or cause to be notified the employer or superior thereof within a reasonable time, provided it shall not be necessary to give such information where the employer or such superior thereof already knows of the defect. Second. Where a person of ordinary care would have continued in the service with the knowledge of the defect and danger and in such case it shall not be necessary that the servant or employé give notice of the defect as provided in subdivision 1 hereof."

Gen. Laws 1905, p. 386, c. 163.

That act took effect on April 24, 1905, and was therefore in effect when appellee was injured on August 26, 1905. The effect of that law is to eliminate the plea of assumed risk in any case where an employé has an opportunity before being injured to notify his employer or a superior given authority to remedy defects of the existence of such defects, and does notify such employer or superior within a reasonable time. No notice is necessary when the employer or superior knows of the defect. It also destroys the force of a plea of assumed risk where a person of ordinary care would remain in the service of his employer with knowledge of such defect and danger. Of course, the matters as to whether an employé has an opportunity to notify his employer, and does or does not notify him, and as to a person of ordinary care, with knowledge of the defect, remaining in the service of the employer, are questions of fact, to be determined by a jury, and the court very properly submitted those matters to the jury. The testimony tended to show that the metal shield used by appellant around its water glass was defective in not being so constructed as to minimize the chances for pieces of glass to be driven out by an explosion with such force as to injure the employés whose duties brought them in proximity to it. It was a defect in construction that would clearly come within the purview of the statute of 1905. The evidence established the defect, and justified the submission of the question as to whether a person of ordinary care would have remained in the service of appellant when he knew that a defective water glass was being used and the danger attending its use. The jury was justified by the evidence in finding that there was a defect, and that appellee, although he knew of the defect, was justified in remaining in the service of appellant.

There is no antagonism between the proposition, as stated in the charge, that railroad companies are not insurers of the safety of their employés, and the propositions of law contained in the statute hereinbefore copied, and there was nothing in the statement of the different propositions calculated to mislead or confuse a jury. How the question of whether a person of ordinary care would have remained in the employment of appellant after he knew the manner in which the water glass was equipped was to be ascertained is not clearly indicated by appellant, but it is insisted that a jury should not have decided it. It had to be decided by some one, and, being purely a question of fact, we know of no other that had the authority, under the law of Texas, to decide it except a jury. When they determined that issue in the affirmative as the evidence undoubtedly justified them in doing, the question of assumed risk was removed from the case.

It is argued by appellant that appellee must have been guilty of contributory negligence if he knew of the defects in the water glass; but that does not necessarily follow. If he had not been relieved from the imputation of assuming the risk by the Legislature making the test the conduct of a person of ordinary care, a knowledge of the defects would create the state of assumed risk, but not of contributory negligence. The distinction between the two must be observed, or confusion will result in the application of the rules pertaining to the two defenses. When it was proved that 75 or 80 persons were using engines on appellant's railroad equipped with water glasses, guarded as was the one that exploded and hurt appellee, it would seem that fact alone would show that persons of ordinary care would use such engines, and justified the jury in eliminating the question of assumed risk from the case. When that defense is removed from the case, it does not necessarily follow, because appellee knew of the defects in the water glass, that he was guilty of contributory negligence in remaining in the service of his employer. The rules of assumed risk and contributory negligence are dependent on widely separated tests and principles. Entering the employment of one who is known to furnish defective appliances might be assuming the risks arising therefrom, but it is not contributory negligence. The latter is the doing of some act or omission amounting to a want of ordinary care as, concurring with some negligent act of the defendant, is the proximate cause of the injury for which redress is sought. There must be some positive act of commission or omission that caused the injury or contributed thereto. To illustrate, if the explosion had been caused by allowing the water to get too low in the boiler, and it had been the duty of appellee to keep the water up to the safety mark, he might have been guilty of contributory negligence in failing to perform his duty; or, if he had been working with the water glass at the time and thereby caused the explosion, such act might have been contributory negligence. He was doing nothing of the kind, but was engaged in the performance of the duty of sweeping the cab when the explosion took place. It is not pretended that the explosion took place on account of any act of commission or omission on his part, but was caused by the inherent power of the hot water or steam. The glass, not being properly guarded, flew out and struck appellee.

Assumed risk refers to a general course of action in connection with the master's way of doing business and the appliances furnished. Contributory negligence refers to the question as to whether the servant acted prudently in connection with a certain matter that arose for his consideration at a certain time and place. The first is an intelligent choice; the latter is carelessness. In the case of Mundle v. Mfg. Co. (Me.) 30 Atl. 16, it was...