San Antonio Gas Co. v. Robertson

• Decision Date: 20 December 1899
• Citation: 55 S.W. 347
• Parties: SAN ANTONIO GAS CO. v. ROBERTSON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

55 S.W. 347

SAN ANTONIO GAS CO. v.ROBERTSON.¹

Court of Civil Appeals of Texas.

December 20, 1899.

Appeal from district court, Bexar county; Robert B. Green, Judge.

Action by B. F. Robertson against the San Antonio Gas Company for damages for personal injury.From a judgment for plaintiff, defendant appeals.Affirmed.

J. F. Onion, for appellant.Nat. B. Jones, for appellee.

FLY, J.

Appellee instituted suit against appellant to recover damages for the loss of an eye caused by the explosion of coal tar which he had been directed by appellant to apply to a boiler.There was a trial by jury, resulting in a verdict and judgment for $2,200 in favor of appellee.

The evidence established that appellee lost an eye from hot tar exploding and flying into his eye while he was applying it to a hot boiler under the direction of appellant.Appellant was charged with the knowledge of the danger of the tar exploding, but failed to warn appellee, who was an inexperienced employé.We find, in deference to the verdict of the jury, that the injury, which is permanent, was caused through the negligence of appellant.The court charged the jury that negligence is the want of "that ordinary care and diligence which an ordinary prudent person would use to prevent injury under the circumstances of the particular or a like case," and that "ordinary care is such care as an ordinary prudent person would use and exercise under like circumstances and conditions."Complaint is made of the use of the word "ordinary" in connection with "prudent person," instead of "ordinarily."It would doubtless have been more correct to have used the word "ordinarily" instead of "ordinary," but, if the words used are not synonymous with a "person of ordinary prudence,"we fail to see how appellant was injured by the use of them.It is not at all probable that the jury could have detected any difference in the two expressions, or that the verdict was in any manner influenced by the words used, and indeed, it is not claimed by appellant that the definition given by the court did influence the verdict.It is not the rule in appellate courts to reverse cases, even when there is positive error in a charge, unless it is reasonably apparent that the jury may have been misled by it.Loper v. Robinson, 54 Tex. 516;Houston Co. v. Dwyer, 59 Tex. 113;Blum v. Light, 81 Tex. 414, 16 S. W. 1090.The tendency of the charge, construed as it is by appellant, was to decrease, rather than increase, the degree of care that devolved upon appellant.The cases of City of Austin v. Ritz, 72 Tex. 391, 9 S. W. 884, andRailway Co. v. Beatty, 73 Tex. 592, 11 S. W. 858, do not support the contention of appellant.In both of those cases the charge eliminated prudence from the definition of "negligence," and it was properly held that the charge was erroneous.The charge in this case has no such error in it.

Appellant in its answer pleaded contributory negligence, and that the injury of appellee resulted from an "unavoidable accident."The court submitted the question of contributory negligence and assumption of risks upon the part of appellee to the jury, and appellant requested a charge as follows: "You are also further instructed...