Texas & Ft. S. Ry. Co. v. Hartnett

Decision Date17 June 1903
Citation75 S.W. 809
PartiesTEXAS & FT. S. RY. CO. v. HARTNETT.<SMALL><SUP>*</SUP></SMALL>
CourtTexas Court of Appeals

Appeal from District Court, Jefferson County; J. D. Martin, Judge.

Action by Eugene Hartnett against the Texas & Ft. Smith Railway Company. Judgment for plaintiff, and defendant appeals. Modified.

Greer, Greer & Nall, Lathrop, Morrow, Fox & Moore, and J. P. Gilmore, for appellant. Smith, Crawford & Sonfield and Lovejoy & Malevinsky, for appellee.

NEILL, J.

This is a suit to recover damages for personal injuries inflicted upon appellee by the alleged negligence of appellant. The allegations of plaintiff are substantially that on the 9th day of June, 1900, he, while in the employment of defendant as a locomotive engineer, in the discharge of his duties undertook to climb into the cab of the engine furnished him by the defendant, which was then being operated by a co-employé, and while in the act of climbing into the cab, the step near the cab door, on which he placed his foot, broke or came loose, and threw him on the track, and the wheels of the locomotive ran over and cut off his left arm near the elbow joint, causing great physical pain and mental anguish, and the loss of the use of his arm and hand; that the defendant company negligently and carelessly furnished plaintiff for his use a defective and unsafe engine and tender, with defective and unsafe appliances; that the step near the cab door, used for the purpose of enabling him to climb into the engine, was in a dangerous and unsafe condition; and that the nut and screw holding the step in place were old, worn, defective, and out of repair, one nut and bolt being entirely gone, which caused the step to break or pull loose, which caused the fall and injury to plaintiff as before stated. The defendant answered by a general demurrer and general denial, and pleaded specially (1) that by the terms of his contract of employment plaintiff was required to act as his own inspector of the engine, and to do such light repairs thereon as he could with the tools furnished him for that purpose; (2) contributory negligence; (3) assumed risk; and (4) that plaintiff attempted to climb into the cab in violation of the rules of the company when he was injured, and was not performing nor attempting to perform any duty within the scope of his employment. The case was tried before a jury, and resulted in a verdict and judgment in favor of plaintiff for $15,000.

Conclusions of Fact.

On the 9th day of June, 1900, plaintiff, while in the employ of defendant in the capacity of a locomotive engineer, in pursuance of the duties of his employment, and in the exercise of ordinary care, undertook to climb into the cab of the engine furnished for his use by the defendant, and in doing so placed his foot on the step below and near the cab door, and, while in the act of climbing into the cab, the step came loose, and threw him to the ground on the railroad track, and the locomotive wheels ran over and cut off his left hand. The injury thus inflicted by plaintiff was caused by the negligence of defendant in failing to exercise ordinary care to furnish plaintiff a reasonably safe engine and tender, and in failing to use such care to inspect and keep them and their appliances in a reasonably safe condition with which to perform the duties of his employment, in that the step near the cab door, provided for climbing and entering into the cab, was insecurely fastened; it having no nut on the bolt to hold it securely in place when used by defendant's servants for the purpose of stepping thereon and entering the engine cab. It was not made plaintiff's duty, by his contract of employment, to inspect the engine, tender, or their appliances, nor to discover or repair defects thereon not open to ordinary observation; nor did plaintiff, by his contract with defendant, expressly or impliedly assume the risk of dangers resulting from the negligent failure of defendant to use ordinary care in furnishing him with a reasonably safe engine and tender, equipped with appliances, with which to perform the duties of his employment with ordinary safety. The plaintiff was guilty of no negligence, nor did he violate any rule of the defendant which contributed to his injuries; but the negligence of defendant was the sole and proximate cause of the injuries sustained by him.

Conclusions of Law.

To the plaintiff, as its servant, the defendant owed personally the duty of using ordinary care and diligence to provide for his use a reasonably safe engine and tender as instrumentalities of his service, and was bound from time to time to inspect and examine such instrumentalities, and to use ordinary care, diligence, and skill to keep them in a reasonably safe condition. Shear. & Red. Neg. §§ 194, 194a. When plaintiff entered defendant's employment, he had a right to rely upon the assumption that the engine and tender furnished him were reasonably safe. He was not required to use ordinary care to see whether plaintiff had used such care in furnishing him such reasonably safe instrumentalities for his use. Not knowing of defendant's negligent failure to discharge its duty in this regard, and the defects not being obvious, or such as would have necessarily been discovered by him in the ordinary discharge of his duties, and it not being made his duty, by the terms or nature of his employment, to inspect the engine, tender, or their appliances, plaintiff was not required to use ordinary care to see whether defendant had performed its duty of using ordinary care to furnish him with reasonably safe instrumentalities with which to perform the duties of his employment. Railway v. Hannig, 91 Tex. 347, 43 S. W. 508; Railway v. Bingle, 91 Tex....

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9 cases
  • St. Louis & S. F. Ry. Co. v. Bridges
    • United States
    • Mississippi Supreme Court
    • January 6, 1930
    ... ... plaintiff must establish ... Nitroglycerin ... case (Parrot v. Wells), 15 Wall. 524, 537, 21 L.Ed ... 206, 211; Patton v. Texas & P. R. Co., [156 Miss ... 208] 179 U.S. 658, 663, 45 L.Ed. 361, 364, 21 S.Ct. 275; ... Looney v. Metropolitan R. Co., 200 U.S. 480, 487, 50 ... 802; Railroad v. Fredricks, 71 Ill. 294; Knock ... v. Tonopah & G. R. Co., L.R.A. 1915F, p. 3; T. & Ft ... W. R Co. v. Hartnett, 33 Tex. Civ. App. 103, 75 S.W ... 809; Struble v. Burlington, etc., Ry., 128 Iowa 158, ... 103 N.W. 142; Williams v. Pickering Lbr. Co., 125 ... ...
  • St. Louis-San Francisco Ry. Co. v. Bridges
    • United States
    • Mississippi Supreme Court
    • November 24, 1930
    ... ... 802; Railroad v ... Fredericks, 71 Ill. 294; Knock v. Tonopah & G. R ... Co., L. R. A. 1915F, p. 3; T. & Ft. W. R. Co. v ... Hartnett, 33 Tex. Civ. App. 103, 75 S.W. 809; ... Struble v. Burlington, etc., Ry., 128 Iowa 158, 103 ... N.W. 142; C. R. I. & P. Ry. Co. v. Batsel, 100 ... ...
  • Wichita Valley Ry. Co. v. Williams
    • United States
    • Texas Court of Appeals
    • February 5, 1926
    ...App.) 137 S. W. 162; Baker, Receiver, v. Bell (Tex. Civ. App.) 219 S. W. 245, and cases therein cited; Texas & Ft. S. Railway Co. v. Hartnett, 33 Tex. Civ. App. 103, 75 S. W. 809; I. & G. N. Ry. Co. v. Brice (Tex. Civ. App.) 95 S. W. 660, and found in (Tex. Civ. App.) 126 S. W. 613; M., K. ......
  • Baker v. Bell
    • United States
    • Texas Court of Appeals
    • December 17, 1919
    ...F. Ry. Co. v. Dorsey, 66 Tex. 148, 18 S. W. 444; G., C. & S. F. Ry. Co. v. Gordon, 70 Tex. 80, 7 S. W. 695; Texas & Ft. Smith Ry. Co. v. Hartnett, 33 Tex. Civ. App. 103, 75 S. W. 809; G., H. & S. A. Ry. Co. v. Pigott, 54 Tex. Civ. App. 367, 116 S. W. 841; G., H. & S. A. Ry. Co. v. Stevens, ......
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