San Antonio & A. P. Ry. Co. v. Klaus

• Decision Date: 10 February 1904
• Citation: San Antonio & A. P. Ry. Co. v. Klaus, 79 S.W. 58, 34 Tex. Civ. App. 492 (Tex. App. 1904)
• Parties: SAN ANTONIO & A. P. RY. CO. v. KLAUS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

79 S.W. 58

SAN ANTONIO & A. P. RY. CO. v. KLAUS.^*

Court of Civil Appeals of Texas.

February 10, 1904.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by Fred L. Klaus against the San Antonio & Aransas Pass Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Houston Bros. and R. J. Boyle, for appellant. H. C. Carter and Perry J. Lewis, for appellee.

NEILL, J.

This is a suit by appellee to recover damages for personal injuries alleged to have been inflicted upon him by the negligence of appellant while he was in its service as a locomotive fireman. The defendant answered by a general denial, and pleas of assumed risk and contributory negligence. The trial of the case resulted in a verdict and judgment in favor of the plaintiff for $8,000.

Conclusions of Fact.

On the 18th day of April, 1901, the plaintiff was in the employ of the defendant as a locomotive fireman, and, while in the act of shoveling coal into the fire box of an engine drawing a freight train, the apron, which covers a space between the deck of the engine and its tank, slipped, and caused his leg to slip between the engine and tank, and his body was thrown backward with great force thereby seriously injuring his back, bruising his leg, and wrenching his hip joint, injuring his nervous system, and causing partial paralysis, painful, serious, and permanent injuries, to his damage in the sum of $8,000. His injuries were proximately caused by the negligence of defendant, and not through any risk assumed by plaintiff, incident to the duties of his employment, nor any negligence on his part contributing in any way to such injuries.

The evidence upon which these conclusions are based may be thus summarized: The apron upon which the plaintiff was standing and at work is a piece of sheet iron that covers the space between the engine and tender. Such an apron, when in proper and safe condition, is fastened to the engine by means of hangers which are attached to the sides of the engine sill. These hangers are bolted in place, each having two bolts. In the top of the hanger is an eye, and on the side of the apron a pin is riveted, which goes into the eye of the hanger; thus forming a hinge, so the apron can be raised up and down; the pin turning in the eye of the hanger. When down, the apron lays over the tender, covering the space between it and the engine. From the engine and tender upon which plaintiff was at work one bolt from each of the hangers was gone, and the remaining bolt of each was loose, which gave the hangers such play as to cause the pins in the eyes of the hangers to work out, and the apron to slip between the engine and tank. These conditions resulted from the negligent failure of the defendant to exercise ordinary care to have the apron securely fastened, or to make such inspection as would be reasonably sufficient to enable it to determine whether or not it was properly or securely fastened. It was no part of the duty of plaintiff's employment to see that the apron upon which he was at work was properly and securely fastened. Its defective fastening and dangerous condition were unknown to him until after the occurrence of the accident, and were not so apparent to such ordinary observation as would charge him with knowledge of such defective and dangerous conditions. There is no evidence whatever tending to show that plaintiff was guilty of any negligence proximately contributing to his injuries.

Conclusions of Law.

1. The first assignment of error, which complains that the court erred in overruling defendant's motion to withdraw the case from the jury, and either permit it to be tried by another jury or to be continued, cannot be considered, because no bill of exceptions was taken to the action of the court. It is uniformly held in this state that, in order to revise the ruling of the trial court in refusing or granting a motion to postpone or to continue, a proper bill of exceptions must be taken to the action of the court. Campion v. Angier, 16 Tex. 93; Harrison v. Cotton, 25 Tex. 54; McMahan v. Busby, 29 Tex. 195; Railway Co. v. Hardin, 62 Tex. 367; Philipowski v. Spencer, 63 Tex. 604; Railway v. Mallon, 65 Tex. 115; Waites v. Osborne, 66 Tex. 648, 2 S. W. 665; Owens v. Railway, 67 Tex. 683, 4 S. W. 593; Sulphur Springs v. Weeks (Tex. App.) 18 S. W. 489; Alamo Fire Ins. Co. v. Lancaster (Tex. Civ. App.) 28 S. W. 126; Simpson v. Texas Tram & Lumber Co. (Tex. Civ. App.) 51 S. W. 655. The exception noted in the order refusing the motion cannot be taken in lieu of a proper bill of exceptions. Simpson v. Lumber Co. (Tex. Civ. App.) 51 S. W. 655; Ins. Co. v. Lancaster (Tex. Civ. App.) 28 S. W. 126. The correctness of the ruling of a trial court upon such a motion necessarily depends upon such facts as are either known to the trial judge of his own knowledge, or shown by the evidence introduced upon such motion; and, in the absence of a bill of exceptions incorporating such facts, an appellate court is in no attitude to review the ruling of the trial court, and must presume that the matters within its knowledge fully authorized such ruling. I. & G. N. R. Co. v. Stewart, 57 Tex. 166; Ponton v. Bellows, 13 Tex. 254.

2. The first and second paragraphs of the court's charge are as follows:

"(1) An employé of a railway company assumes the risk wihch is ordinarily incident to the business; but he does not assume any risk which may be begotten by the company's negligence, unless he knew of such risk, or, in the ordinary discharge of his own duty, must necessarily have acquired such knowledge.

"(2) It is the duty of a railway company to exercise ordinary care to furnish its servants with reasonably safe and suitable appliances with which to perform the duties required of them; and, when a person enters the employment of a railway company, he has the right to rely upon the assumption that the appliances which he is called upon to use are reasonably safe, and he is not required to use ordinary care to see whether this has been done or not, and he does not assume the risk arising from the failure of the railway company to do its duty, if there is a failure, unless he knew of the failure and the attendant risk, or, in the ordinary discharge of his own duty, must necessarily have acquired such knowledge."

The latter paragraph is complained of as error, and the proposition asserted under the assignment is as follows: "It is improper for a court by repetitions to place a principle of law involved in the case too prominently before the jury, and a violation of this rule will require a reversal when the repetition indicates the opinion of the court upon the facts." The soundness of the principles of law embodied in the charge complained of, applicable to the facts in this case, is not, and cannot be, called in question. Ry. v. Wade (Va.) 45 S. E. 915; Ry v. Hannig, 91 Tex. 347, 43 S. W. 508; Railway v. Bingle, 91 Tex. 287, 42 S. W. 971; Railway v. O'Fiel, 78 Tex. 486, 15 S. W. 33; Railway v. Engelhorn (Tex. Civ. App.) 62 S. W. 561; Railway v. Winton (Tex. Civ. App.) 66 S. W. 481; Railway v. Davis (Tex. Civ. App.) 65 S. W. 217; Railway v. Lindsey (Tex. Civ. App.) 65 S. W. 669; Railway v. Abbey (Tex. Civ. App.) 68 S. W. 293; Railway v. Buch (Tex. Civ. App.) 65 S. W. 681; Railway v. Newport (Tex. Civ. App.) 65 S. W. 657; Railway v. Blackman (Tex. Civ. App.) 74 S. W. 74; Finnerty v. Burnham (Pa.) 54 Atl. 996; Whitaker's Smith on Neg. p. 155, and authorities cited in note "d," p. 157; T. & P. Ry. Co. v. Archibald, 170 U. S. 655, 18 Sup. Ct. 777, 42 L. Ed. 1188; Ry. v. McDade, 191 U. S. 64, 24 Sup....