San Antonio Gas Co. v. Robertson

• Citation: 56 S.W. 323
• Parties: SAN ANTONIO GAS CO. v. ROBERTSON.
• Decision Date: 09 April 1900
• Court: Supreme Court of Texas

Page 323

56 S.W. 323

SAN ANTONIO GAS CO. v. ROBERTSON.

Supreme Court of Texas.

April 9, 1900.

Error to court of civil appeals of Fourth supreme judicial district.

Action by B. F. Robertson against the San Antonio Gas Company to recover for a personal injury received while in the defendant's employ. From a judgment for plaintiff, and an order overruling a motion for a new trial, affirmed by the court of civil appeals (55 S. W. 347), defendant brings error. Reversed.

J. F. Onion, for plaintiff in error. Nat. B. Jones, for defendant in error.

WILLIAMS, J.

Plaintiff in error at the time of the occurrence in question was engaged in manufacturing, from coal, gas and its by products, including coal tar. Defendant in error had been employed as helper to render such service about the works as should be assigned to him. He was ordered by the vice principal of plaintiff in error to paint a boiler, which was hot, with coal tar manufactured in the business, and was instructed to heat the tar, so that it might be the better applied. He heated the tar, and was engaged in spreading it with a paint brush upon a part of the boiler higher than his head, when some of the tar popped into his eye, burning it, and eventually causing the loss of it. Defendant in error had never before done such work, and was ignorant of any danger of such an occurrence. Coal tar is proper material with which to paint boilers, and there was nothing to show any unfitness in that which was used on this occasion; the sole complaint being that the vice principal failed to properly instruct the servant in the use of it, and to so advise him concerning the risk to be incurred as to enable him to protect himself. The vice principal himself was ignorant of any such danger, and there was no evidence of such an accident ever having happened before, although it appeared that coal tar was commonly used for such purposes. There was evidence which tended to show that the popping of the tar may have resulted from inequality between its temperature and that of the surface to which it was applied, causing some of its constituents to suddenly boil and generate vapors, which, in escaping, threw out the tar. Testimony of experts was introduced, tending to show that coal tar, when spread upon surfaces hot enough to cause some of its constituents to boil, would spatter; and this is probably what happened when defendant in error was hurt, if his injury occurred as he states. There is no evidence to show the existence of danger in the painting of the boiler greater than that which might result from such spattering or "bumping" of the tar, and none tending to show previous injury to any one from such a cause. The work of...