Pullman Co. v. Caviness

• Decision Date: 03 February 1909
• Citation: 116 S.W. 410
• Parties: PULLMAN CO. v. CAVINESS.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

116 S.W. 410

PULLMAN CO. v. CAVINESS.^†

Court of Civil Appeals of Texas.

February 3, 1909.

Rehearing Denied March 3, 1909.

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by Henry Caviness against the Pullman Company. From a judgment for plaintiff, defendant appeals. Reversed, and judgment rendered for defendant.

Guinn & McNeill, for appellant. Bertrand & Arnold and Ernest Fellbaum, for appellee.

NEILL, J.

This suit was brought by appellee against appellant to recover damages for personal injuries alleged to have been inflicted upon him by the company's negligence. The allegations in plaintiff's petition are substantially: That on February 14, 1908, while in the employ of defendant, it became necessary for him, in the discharge of the duties of his employment, to apply bedbug poison furnished by defendant to a berth in one of its sleeping cars, and, after the poison had been applied to the spring on one side of the berth, to turn the spring and apply it on the other side; that in the performance of this duty the poison was, through the negligence of defendant, ignited and exploded, and he was thereby burned and seriously and permanently injured; that the defendant was negligent in that, the bedbug poison being a highly explosive liquid, easily ignited and dangerous for use, it failed to warn him of the danger of using it, and in permitting a match or other highly inflammable substance to remain in the berth, which, while plaintiff was in the act of turning the spring in the berth, ignited and caused the poison which had been applied to explode, the plaintiff not knowing of the danger of using the poison; and that such negligence was the proximate cause of his injuries. In our view of the case, we deem it unnecessary to say more of defendant's pleadings than that its answer contained a general denial. The case was tried by a jury, and resulted in a judgment in favor of the plaintiff for $1,000.

The undisputed evidence shows that plaintiff sustained injuries, while in discharge of the duties of his employment, as he alleged in his petition. The only question in the case is, Does the evidence tend to show that his injuries resulted from defendant's negligence? The undisputed evidence shows that defendant had been using the same kind of bedbug poison, for the same purpose and in the same manner, for a great number of years prior to the time plaintiff was injured, and that it had never ignited or exploded before; that the poison was in a liquid form, composed of turpentine, wood alcohol, and corrosive sublimate, to make a gallon of which three quarts of turpentine, one quart of wood alcohol, and about 3-16 of a pound of the sublimate were used; and was such as is usually prepared and sold by druggists for the purpose defendant used it; that it was applied from a tin bucket by sprinkling with a feather duster; that plaintiff is 26 years old, and had worked for defendant as a car cleaner, prior to the date of his injuries, for 3 years, and during the last 2, in cleaning the cars, applied the bedbug poison as on the occasion in question. Plaintiff's younger brother, John Caviness, who was his foreman, was likewise engaged in the same car in sprinkling the poison on the opposite side of the car from plaintiff when the explosion occurred. The plaintiff testified as to how the accident happened as follows: "The foreman's poison gave out before we were through, and he asked me if I had enough poison left in my bucket to come back and finish those two sections. I told him I had enough, and was putting it on, rubbing it on one side of the spring first, and then raising the spring, leaning it back, in order to put the poison on, and when I snatched up the spring to lean it back, the fire burst out in a big blaze, going to the top of the car at that end. * * * The berth I was poisoning at the time was an upper. I could reach it while standing on the floor, but had to get up on a stepladder to apply the poison to the spring like it was, and I was on the stepladder when the fire broke out. ...