San Antonio & A. P. Ry. Co. v. De Ham

• Decision Date: 06 November 1899
• Citation: San Antonio & A. P. Ry. Co. v. De Ham, 53 S.W. 375 (Tex. 1899)
• Court: Texas Supreme Court
• Parties: SAN ANTONIO & A. P. RY. CO. v. DE HAM.

53 S.W. 375

SAN ANTONIO & A. P. RY. CO. v. DE HAM.

Supreme Court of Texas.

November 6, 1899.

Certified questions from court of civil appeals of First supreme judicial district.

Action by Joseph A. De Ham against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant appealed to the court of civil appeals, which certifies questions to the supreme court.

O. T. Holt, for appellant. Wheeler & Rhodes and Fisher, Sears & Sherwood, for appellee.

WILLIAMS, J.

The following questions, with accompanying statement, are sent up by the court of civil appeals for the First district:

"The action was a suit for personal injuries, and resulted in a verdict for appellee. * * * The part of appellee's petition in which his cause of action is alleged is as follows: `Your petitioner charges that the explosion occurred from no want of care on his part; that prior to the explosion, and within a few minutes thereof, he tested the water in the boiler, and found the same to be right, but that the explosion occurred through the negligence of defendant in failing to have a proper inspection of said engine made, and necessary repairs made thereon, before sending same out on the road; that said engine was in bad condition when plaintiff was placed in charge thereof, which was unknown to him at the time, in this: The crown sheet, the flue sheet, and the entire fire box were in an unsafe condition, the radial bolts, after the explosion, showing plainly that they had gone through the crown sheet; that they were rotten and weak, having been eaten away in part by alkali water, and wholly unfitted for the purpose for which they were used.' The appellant urged no exception to the petition, but answered, after general denial, that appellee was guilty of contributory negligence in permitting the water to get too low in the boiler, resulting in the burning of the crown sheet and the consequent explosion. During the progress of the trial the plaintiff's counsel asked his witness Jones as to the nature and office of a soft plug, and the witness, without objection from defendant, proceeded to describe it as a piece of Babbitt metal placed in a hole in the top of the crown sheet, or top of fire box, in such position that if the engineer permitted the water to get too low the fire would melt the Babbitt metal, and the steam and water would escape through the hole, putting out the fire and preventing the burning of the crown sheet. This witness was then asked by plaintiff's counsel if the engine in question had a soft plug in it. Defendant objected to the question on the ground that `it was not shown that the presence or absence of a soft plug had anything to do with the accident, and because there are no allegations in the petition that the absence of a soft plug in the engine boiler was relied on as a basis of negligence in this case.' The court overruled the objection, and the witness answered that the engine in question had no soft plug. The same witness was permitted to testify, over a like objection, that, had a soft plug been present, the crown sheet could not have burned. Defendant reserved exception to the court's action in admitting this testimony, and has duly urged it before this court. Later on in the trial the same witness testified, without objection, that he had worked for defendant company three years before, and that then they never permitted an engine to go out without a soft plug. He also testified in that connection that if an engineer would always attend to his business, and keep a proper stage of water in the boiler, there would be no use in a soft plug. Thereafter the defendant asked two of its witnesses if the engine in question had a soft plug, and received a negative reply from each. The fact that there was no soft plug in the engine was not controverted.

"Appellee was an engineer on appellant's locomotive engine No. 46. While operating it on defendant's line of road, and shortly after taking water at a tank, it exploded, blowing appellee out of the cab window of the engine, while running at the rate of about 20 miles an hour. Appellee testified that he had just tested the water gauges in the presence of the fireman and head brakeman, who were in the cab at the time, and that he had two gauges of water. The evidence is undisputed that with that amount of water the crown sheet could not have burned. The fireman and head brakeman were shown to be still in the employ of the company, but neither party called them as witnesses.

"The contention of appellee was that the explosion was due to the fact that the engine had become weak from long use and lack of repair, and from the effect of the use of alkali water in the boilers. The explosion was through the crown sheet and fire box, but the front end of the engine was also blown out. The defense relied mainly upon the contention that the engineer had permitted the water to get too low in the boiler, whereby the crown sheet or top of the fire box became red-hot and weak, and...