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

• Decision Date: 09 October 1915
• Docket Number: (No. 7389.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 180 S.W. 300
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS. v. EWING.
• Court: Texas Court of Appeals

180 S.W. 300

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

(No. 7389.)^*

Court of Civil Appeals of Texas. Dallas.

October 9, 1915.

Rehearing Denied December 4, 1915.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

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

E. B. Perkins, of Dallas, and Scott & Ross, of Waco, for appellant. R. M. Vaughan, of Hillsboro, B. Q. Evans, of Greenville, and H. C. Bishop, of Hubbard, for appellee.

RAINEY, C. J.

Appellee instituted this suit against the appellant to recover damages for personal injuries sustained by him while in the employ of appellant as section foreman, the allegation being that while the section hands were operating a hand car on defendant's track, the cogs of the car became locked from being geared too tight or too deep, throwing the car from the track, and resulting in injuries to him; that said car was defective for use, and the company was negligent in furnishing it for use in performing his duties. Appellant answered, in effect, that said car was new, and had been received with others from a reputable factory, which car was reasonably safe, and that it had used due care in the premises; that said hand car had been placed in the hands of appellee, who had used it for about 30 days and had never reported any defect to the appellant, and if he was hurt, it was due to his own fault; that if there was any defect in said hand car, it was a latent defect, unknown to appellant or appellee, and said condition arose out of and constituted one of the ordinary risks incident to the employment which was assumed by appellee; that the same was an accident, and could not have been foreseen, and for which no one is responsible. Appellee recovered a judgment for $4,000, from which this appeal is taken.

The first assignment of error complains of the refusal of the court to give a charge, in effect, that there is no evidence showing appellant guilty of negligence, and to return a verdict for defendant. The evidence shows that appellee was in the employ of appellant as section foreman; that appellant furnished appellee a new hand car for use on this section, which car had been just received from the factory, stamped "Sheffield." What factory made it, where situated, or its reputation, other than the name on the car, is not shown. The only testimony in regard thereto is that of appellee, who stated in effect, that he had known the Sheffield car about 20-odd years, and considered it a standard make, but could not tell where the factory was located. Appellee had been working for appellant for about 6 years, but had worked only one new car prior to this one and had had no trouble with it. He had worked with hand cars about 26 years, and up to this time never had such an experience with a car. He had used this car several days before the accident. He did not know what the trouble was, but it was shown to be too tightly geared, and he thought it worked that way because it was new. On the occasion of the accident he was on the car traveling down grade when, without warning, it suddenly stopped and jumped the track, throwing him off and injuring him. The car had, previous to this, on three or four occasions, in running made a grinding noise, which he attributed to its newness, and it never occurred to him that there was anything wrong with the machinery, but thought it was caused by the way it was handled by the men. "The first intimation I had that anything was wrong with the car was the sudden stop, and I went over." The car being geared too tight caused the cogwheels to sink too deep in the grooves, and caused them to bind when running, and liable to produce a lock and cause a wreck. Appellant furnished the car to appellee as it came from the factory, without having it inspected. Appellee was not a machinist, and supposed the car was all right. The testimony shown in the record is sufficient to raise the issue of negligence on the part of the appellant in furnishing a defective car for appellee's use, and it was proper for such issue to be submitted to the jury for their determination.

The second assignment of error complains of the giving of paragraph 4 of the main charge of the court, which is:

"You are instructed that it was the duty of the defendant to have exercised ordinary care to furnish to the plaintiff a reasonably safe and suitable car to be used by him in the performance of his duty, and that it was the duty of said defendant, before said car was delivered to the plaintiff, to have caused the same to be examined to ascertain its condition, and that the plaintiff had a right to assume that the defendant had performed its duty in these respects, and was under no obligation to inspect the car for the purposes of ascertaining whether or not the defendant had performed its duty in these respects."

The criticism of this charge is, in effect, that the court erred in telling the jury in this case that it was the duty of defendant to inspect the hand car before delivering it to appellee for use; that under the evidence it was a question for the jury whether or not the defendant had used ordinary care in providing a suitable car. The evidence shows that the car was ordered by the defendant from a manufactory, which was a reputable concern, engaged in making hand cars of a standard make, such cars as were in use by railroads throughout the country. The car was shipped to the railroad by the...