Texas & N. O. R. Co. v. Gardner

• Decision Date: 19 May 1902
• Citation: 69 S.W. 217
• Parties: TEXAS & N. O. R. CO. et al. v. GARDNER.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

69 S.W. 217

TEXAS & N. O. R. CO. et al. v. GARDNER.¹

Court of Civil Appeals of Texas.

May 19, 1902.

Error from district court, Harris county; Wm. H. Wilson, Judge.

Action by Elzy A. Gardner against the Texas & New Orleans Railroad Company and others. From a judgment for plaintiff, defendants bring error. Affirmed.

Baker, Botts, Baker & Lovett and A. L. Jackson, for plaintiffs in error. Lovejoy & Malevinsky, for defendant in error.

GILL, J.

This is an action for damages for personal injuries alleged to have been sustained by the plaintiff Elzy A. Gardner through the negligence of the agents and officers of the Texas & New Orleans Railroad Company and the Galveston, Harrisburg & San Antonio Railway Company, who were joined as defendants below. The negligence complained of was the failure of the agents of defendants to warn plaintiff of the poisonous nature of certain ingredients used in a vat of boiling liquid of which, as employé of defendants, he was placed in charge, and with and about which his duties required him to work. His injuries are alleged to have been due to metallic and chemical poison taken into his system both by contact with them and the liquid containing them and by inhaling the noxious vapors arising therefrom. Defendants answered: (1) By general denial; (2) that plaintiff knew the nature of the ingredients and character of the work, and assumed the risk of injury therefrom; (3) that the injuries complained of were due to plaintiff's own inherent weakness and disease, and, knowing his physical condition, was guilty of contributory negligence in exposing himself to the hardships incident to his work. A trial by jury resulted in a verdict and judgment for plaintiff, from which defendants prosecute this writ of error.

The facts are as follows: The defendants maintained at their shops in the city of Houston a large vat called a "lye tub" for the purpose of cleaning parts of engines and other machinery. This vat had a capacity of between 1,000 and 2,000 gallons, and its depth was over 3 feet. Connected with it was a machine operated by compressed air for use in lifting weights too heavy to be handled by hand. Tongs were supplied for handling smaller pieces. It was the duty of the employé in charge to keep the vat filled with a liquid designed for the purpose, and, by the addition from time to time of certain chemicals, supplied by the defendants, to keep the contents of the vat up to a certain strength, in order that it might effectively dissolve and clear away the dirt, grease, and other foreign matter which accumulates upon machinery by use. This liquid was kept at 212° F. by a coil of steam pipe in the bottom of the vat. The pieces cleaned in this vat were of steel, iron, or copper, and some of them contained paint, one of the ingredients of which is white lead. This paint would be removed and dissolved in the liquid when the pieces were immersed therein. The main body of the liquid was procured from hoppers filled with ashes, over which water was poured, the product running into the vat in the form of ordinary lye. To increase the strength of this, it was necessary to use "boiler compound," the active ingredient of which was caustic soda. This was sometimes put into the vat in lumps and sometimes in solution previously prepared by the company and kept in quantity for the purpose. A steam jet was used to expel from the machinery any particles of dirt, grit, or paint or other foreign substance which might remain thereon after it was taken from the vat. In using this, if the piece was smooth and round, the particles would be blown away from the person using it, but, if the piece was hollow or irregular in form, the particles, together with such quantities of the liquid as adhered, would be blown back on the hands, face, and clothing of the person using it. Vapors arose from the boiling liquid, which were necessarily inhaled by the person in charge of the work. The labor was heavy and disagreeable. On the 18th of July, 1898, plaintiff sought employment of the defendants, and was placed in charge of the vat, his duties being as above described, and to use the vat for the purposes for which it was designed. He was taken to the vat, and an employé told to explain his duties to him, how to use the lifting apparatus, the steam jet, how to keep the liquid up to its necessary strength, and where to get the...