St. Louis Southwestern Ry. Co. of Texas v. Schuler

• Decision Date: 08 May 1907
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. SCHULER.
• Court: Texas Court of Appeals

Page 783

102 S.W. 783

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. SCHULER.

Court of Civil Appeals of Texas.

May 8, 1907.

Rehearing Denied June 5, 1907.

Appeal from District Court, Smith County; R. W. Simpson, Judge.

Action by L. J. Schuler against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

E. B. Perkins and Marsh & McIlwaine, for appellant. Johnson & Edwards, for appellee.

NEILL, J.

This suit was brought by the appellee against appellant to recover damages for personal injuries alleged to have been caused by the latter's negligence. The negligence charged was that defendant furnished plaintiff, while in its employ, with a defective pinch bar with which to do his work on a bridge, from which he fell in consequence of the defective implement, and was injured. The defendant answered by a general denial, pleas of assumed risk and contributory negligence. The trial of the case resulted in a verdict and judgment in favor of the plaintiff for $5,000.

Conclusions of Fact.

The evidence shows that on March 18, 1904, plaintiff while at work for defendant on a bridge which was being constructed for it, fell from one of its cap sills about 18 feet to the ground and was seriously and permanently injured. At the time of the accident the rails had been laid on the bridge, and the bridge gang was spacing the ties and lining the rails. In doing this work, some of the men were prizing or "nipping" up the rails with pinch bars, and some, among whom was plaintiff, were spacing the ties and placing them in proper position. While plaintiff was at this work, which he did with a maul, and was about 15 feet from where the other men were "nipping" up the rails with pinch bars, William Stubbs, the foreman of the gang, called him, saying: "Come here, and give these men a hand." In obedience to this order, plaintiff went to the foreman, who handed him a pinch bar, saying: "Help these men"—referring to the men engaged in "nipping" up the rails. The plaintiff at once took the bar from his foreman, stood on a cap sill, hurriedly placed its end over a tie and under a rail, and prized down, when the bar slipped from under the rail, and, in consequence, he lost his balance and fell about 18 feet to the ground, and was injured. A part of the point of the bar of that end which he shoved beneath the rail was broken off, which caused it to slip from under the rail when the plaintiff prized upon it, and in consequence he lost his equilibrium and fell from the bridge. The plaintiff did not know that the bar was broken, and would not, under the circumstances, necessarily discover such defect, before thrusting its broken end under the rail, by the exercise of ordinary care. When the danger the defendant subjected plaintiff to by handing him the broken bar for immediate use upon top of a high bridge is considered, the jury was, under all the facts and surrounding circumstances, warranted in finding that such act of the defendant was negligence, and that such negligence was the proximate cause of plaintiff's fall and injuries, and that he was guilty of no negligence proximately contributing thereto, and did not assume the risk of using the bar, not knowing of its defective condition or the danger incident to its use.

Conclusions of Law.

1. The above conclusions of fact dispose of the first assignment of error, which complains of the court's overruling defendant's motion for a new trial, upon the ground "that the verdict is against the great weight and preponderance of the testimony, and without sufficient evidence to support the same, in that the evidence shows that at the time plaintiff was injured he was an experienced bridgeman, having pursued that avocation for several years prior to that time, and knew at the time he attempted to use the same, or by the exercise of ordinary care in the performance of his work ought necessarily to have known, the same was broken, the defect being patent and open to observation, and he assumed the risk of using it in such condition." In reaching our conclusions of fact we have been governed by the principles that the evidence should be viewed in the light most favorable to the verdict; that it was for the jury to weigh and determine the preponderance of the evidence, and for us only to determine whether there was any evidence that the jury could place and weigh in the scales given it by the law, and, when such evidence was found, to accept its weight as registered by the verdict. It is true that a lever is the simplest of all mechanical powers, and a defect, such as was in the one used by the plaintiff, would, ordinarily, be discovered at once by him to whom given for use. But the readiness of discovering the defect in such an implement makes the negligence of the master more apparent in furnishing it to a servant for use at a time and place where serious injury would probably befall him in consequence of the defect, than it would be in furnishing him a less simple implement. For the master to place a servant at work where his use of a broken tool will probably cause him serious bodily injury, and then give him such a defective instrument, and order him to use it at once in his work, may well be considered by a jury as negligence in fact. Aside from the duty of the master to exercise ordinary care to furnish his servant reasonably safe tools with which to do his work, and the right of the servant to assume, in the absence of knowledge to the contrary, that the duty has been performed, it is a principle well settled that, when the master gives a servant an order which it is his duty to obey, his act of obedience will not be regarded negligence per se, unless the danger of obeying the order is so glaring that no prudent man would have undertaken it. G., H. & S. A. Ry. v. Puente (Tex. Civ. App.) 70 S. W. 363; S. A. & A. P. Ry. v. Stevens (Tex. Civ. App.) 83 S. W. 235.

2. The second assignment of error is directed against the action of the court in refusing the second special instruction requested by the defendant, which is as follows: "You are, at the instance of the defendant, charged that if you believe from the evidence that the pinch bar was broken, and that had it not been broken plaintiff would not have been injured, it will still be your duty to return a verdict for the defendant, if you also believe from the evidence that the plaintiff knew that the pinch bar was broken, or if you believe from the evidence that the defect, if any, in the pinch bar, was open, patent, and visible, and that plaintiff, in the exercise of ordinary care, would necessarily have known of the defect." And the third complains of its refusing this one: "If you believe from the evidence that the pinch bar was broken, and you further believe from the evidence that plaintiff knew this, or in the exercise of ordinary care in doing his work would necessarily have acquired such knowledge, and that this was the sole proximate cause of the injury, you will return a verdict for the defendant." Under these assignments the appellant asserts this proposition: "If appellee knew, or in the exercise of ordinary care for his own safety would necessarily have learned, that the pinch bar was broken, then he assumed the risk of using the broken bar, and the jury should have been so instructed. The special charges announced correctly the doctrine of assumed risk, and should have been given by the court." This proposition is embraced in this part of the court's charge: "If you find that plaintiff knew that the bar in question was broken, or if a person similarly situated must have necessarily discovered the broken...