Southern Pac. Co. v. Lasch

• Court: Texas Court of Appeals
• Writing for the Court: Garrett
• Citation: Southern Pac. Co. v. Lasch, 21 S.W. 563, 2 Tex.Civ.App. 68 (Tex. App. 1893)
• Decision Date: 26 January 1893
• Parties: SOUTHERN PAC. CO. v. LASCH.

Page 563

21 S.W. 563

SOUTHERN PAC. CO. v. LASCH.

Court of Civil Appeals of Texas.

January 26, 1893.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Action by John Lasch against the Southern Pacific Company for negligence. From a judgment entered on a verdict for plaintiff, defendant appeals. Reversed.

T. W. Waul, for appellant. Brady & Ring and F. M. Spencer, for appellee.

GARRETT, C. J.

Plaintiff brought this suit against the Southern Pacific Company to recover damages for personal injuries received by him while in the employ of the company, as fireman of a pile-driver engine, without fault or negligence on his part. Defendant demurred to the petition, and also pleaded a general denial, and contributory negligence. The demurrer was overruled, and trial by jury resulted in a verdict for the plaintiff. The overruling of the demurrer has been assigned as error. Substantially stated, as far as necessary, the petition alleges that, at the time of the injury, plaintiff was in the employ of defendant as a fireman of a stationary engine on a pile-driver car then and there being operated by defendant in the city of Houston. That said stationary engine was situated near one end of said car, and, while plaintiff was engaged in shoveling coal into the said engine, one of the defendant's employes, in charge of one of the locomotive engines then being operated by the defendant, caused said engine, and certain cars attached to it, to violently jolt and jar said pile-driver car, without warning to plaintiff, whereby he was thrown from said car, between the same and another car, immediately behind it, and one of his legs was run over by said car, and he was injured. That said stationary engine was located very near the end of the car; it being intended that the same should be inclosed in a small house, for the protection in part of defendant's employes, including the fireman, whose duty it was to shovel coal into the furnace of said engine. That, some two or three weeks before said accident happened, said engine had been removed temporarily from said car, in order that the same might be more conveniently used in the removal of a wreck, and, in order to take the engine off from said car, the rear end of the house inclosing the engine, being the portion next to the end of the car, had been taken out; it having been constructed in such a manner as to be easily taken out and replaced, by means of bolts, without injury to the structure of the same. That previous to said accident plaintiff had been in the employ of defendant as a fireman, in connection with said stationary engine on said pile-driver car, for a year or more, and that on a number of occasions during said period said engine had been taken off temporarily from said car, and placed on the ground; such removal having been made by taking out the rear end of the house, as aforesaid. That on all said occasions when the engine had been returned to said car the plank forming the rear end of said house, in connection with the narrow sliding doors, also forming a part of the same, had been replaced. That about four days before the occurrence of the accident complained of the engine was returned to its place on the car, but defendant negligently failed and neglected to replace the end of said house, and negligently permitted said pile-driver car to be used without the same being replaced. Said house having no end to it, and there being no projection whatsoever on the sides of the same, to which a person could catch hold in case of a jar or jolt, plaintiff was thereby exposed to great and unnecessary danger in passing around said engine, and in shoveling coal into the same. That when said jolt and jar occurred, as before alleged, plaintiff did in fact throw his hands against the side of said house; and had there been a projection there, even to the extent of a few inches, which he could have caught hold of, or had the plank constituting the end of said house been replaced as promptly as it had been the custom of defendant theretofore to do, the accident would not have occurred. Plaintiff also averred that defendant had promised to replace said plank, forming the end of said house, within a very short time, and by its action induced plaintiff to believe that the same would be replaced within a very short time, and that, relying on such promise, and on the custom and habit of defendant to replace the end of said house, as aforesaid, as soon as the engine was returned to the same, plaintiff continued to remain in defendant's employ, and discharge the duties of a fireman in and about said engine; being induced thus to continue the same by reason of the conduct, words, and actions of the defendant as aforesaid. He also charged that defendant and its employes were guilty of negligence towards him and others whose duties required them to work about said engine, in failing at once to restore the end of said house to its proper place, and that the accident to him, complained of, resulted from such negligence on their part, and without fault or negligence on the part of plaintiff.

As stated in the brief of counsel for the appellee, the suit was brought upon the theory that the master had promised to repair the defect caused by leaving out the end of the house; and the injury having occurred within a reasonable time for the performance of such promise, and the defect not being of such a dangerous character that a prudent man would not have continued in the service, in view of the promise, for such reasonable time, the defendant company assumed the risk of the defect, thereby making itself liable to the plaintiff for the consequences of the accident. Without committing ourselves to the position thus broadly taken by counsel for appellee, we think the facts alleged in the petition bring the case within the exception to the general rule that the employe cannot recover for injuries received from the use of defective implements or machinery, of which he had notice, as recognized in Railway Co. v. Drew, 59 Tex. 12. Plaintiff alleged that the accident would not have occurred but for the fact that the end of the house had not been replaced, and that defendant had promised to replace it within a very short time, and by its action induced plaintiff to believe that it would be replaced as promised, and that, relying on the promises of defendant, and the custom and...