El Paso & S. W. R. Co. v. Foth
| Decision Date | 20 November 1907 |
| Parties | EL PASO & S. W. R. CO. v. FOTH. |
| Court | Texas Supreme Court |
Action by W. D. Foth against the El Paso & Southwestern Railroad Company. Judgment for plaintiff (100 S. W. 171), and defendant brings error. Reversed and remanded.
Patterson, Buckler & Woodson, for plaintiff in error. Jno. L. Dyer, for defendant in error.
Upon all of the questions, save one, the Court of Civil Appeals reached conclusions with which we agree. 100 S. W. 171, 18 Tex. Ct. Rep. 610. We are of the opinion, however, that the trial court committed error in refusing the fourth special charge requested by the defendant (plaintiff in error), which was as follows: "If you find from the evidence that at the time of plaintiff's injury there existed among skillful and competent railroad men, charged with the duty of protecting water glasses on engines, a difference of opinion as to the safest mode of protecting such glasses consistent with their efficient use as such, and that the defendant company in the exercise of its best judgment selected the kind of protection that was upon the engine and around the glass at the time of plaintiff's injury, then the defendant would not be liable to the plaintiff, even though the jury may conclude from the evidence that the kind of protection selected and used by the defendant was not the kind best calculated to prevent injury to the employés of defendant in case of the bursting of the water glasses, provided it used ordinary care in making the selection." The plaintiff (defendant in error) was struck in the eye by a piece of glass thrown out by the explosion of the water glass of the engine upon which he was employed as fireman. The negligence alleged was that the glass was not properly guarded by a shield to prevent the flying of glass in the event of an explosion, such as the evidence shows frequently happened. The defendant had around its water glass one kind of shield which was extensively used and which was in its normal condition; its only defect, if there was one, being in its original construction. Other kinds of shields had been and were in use and experts differed in their opinions as to which was the best and safest. The very issue to be determined, therefore, was that correctly stated in the special instruction. The charges given by the court were such that the jury might have inferred the rule to be as laid down in that requested and refused, but this is not a sufficient answer to a request thus specifically defining to the jury the very proposition upon which the defense relied and grouping the facts by which it might be established. M., K. & T. Ry. Co. v. Carter, 95 Tex. 484, 68 S. W. 159; M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 638, 35 S....
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