Texas & P. Ry. Co. v. Bradford

• Decision Date: 19 November 1886
• Court: Texas Supreme Court
• Parties: TEXAS & P. RY. CO. <I>v.</I> BRADFORD.

2 S.W. 595

TEXAS & P. RY. CO.v.

BRADFORD.

Supreme Court of Texas.

November 19, 1886.

Appeal from Red River county.

Foster & Wilkinson, for appellant, Texas & P. Ry. Co. E. S. Chambers, for appellee, Bradford.

STAYTON, J.

The appellee was a foreman in charge of a section of appellant's railway, and had been working in that capacity for about six years before he was injured; was 46 years old; had been railroading the most of his life, and from his own statement understood that business. He thus states the manner and cause of the injury for which he seeks to recover damages: "On the fifth of March, 1884, the road-master passed over my section [66] going west on defendant's road, and ordered me peremptorily to straighten the rail; and told me that, if I did not have it straightened by the time he returned that evening, he would find a man that would straighten it. Under these circumstances I attempted to straighten the rail with such tools as I had. I laid a tie across the railroad track, and then took a crow-bar, and placed it at one end of the crooked iron rail, and then ordered the section hands to raise the iron rail up high, intending to let it fall across the tie placed as above stated, so as to let the weight of the rail straighten itself by the fall. When they got it up as high as they were going to get it, they were to say, `High up,' and then I expected to look out for the drop. It slipped, or something; and, when the rail fell, it jumped forward and caught me," etc. The same official had several times before directed him to straighten the rail, which was very much curved, and he had objected to doing so because he "did not have the proper tools to straighten the rail with, and did not believe he could straighten it. He only had shovels, spades, and track tools, and had no curving hook, an instrument used in straightening railroad iron rails." He further stated that he "had no idea of any danger in the work, and only objected to undertake it because he did not think he could do it with the tools he had;" that a curving hook was a proper instrument to use in straightening curved rails; that he had never been furnished with one, and did not know that they were furnished by the road to section foremen; that he could have straightened the rail by heating it, but could not have done so by the time the road-master returned that evening; that he had never seen a rail so crooked as the one he attempted to straighten, straightened by section-men; and that they were always taken to the shops for that purpose. He further stated that the road-master instructed him how to straighten the rail, and that he followed his instructions. The rail which he attempted to straighten was 26 or 28 feet long.

The road-master corroborated the statement of the appellee as to the orders given to him, and as to the tools he had, and he also stated that a curving hook was a tool necessary to straighten rails with safety. The road-master further stated that he "did not consider the tools he had were sufficient to straighten the rail, but they were the only tools he had to use. It was a work of pressing necessity, and had to be done, as we were short of rails. I consider that there is danger in trying to straighten any rail without proper tools. * * * I did not think there was danger to the life of plaintiff in obeying the order."

The order to the appellee to straighten the rail came from the road-master, who seems to have had charge of a division of the road, and he was ordered to have this done by the general road-master. Several railroad men stated that the effort to straighten the rail in the manner attempted was imprudent and dangerous, but one witness stated that the method adopted was recognized as a proper one for such work.

It may be admitted, under the facts proved, that the appellant is liable if an individual master who should direct such work to be done, under the circumstances, would be liable. It is to be observed in this case that the injury did not result from the use of any tool, implement, or appliance, defective if considered with reference to the use to which they were adapted, and for which they were ordinarily used. There is no complaint that the crow-bar, tie placed across the rails, or the rails which supported it, were unsound, or in any respect defective, when so considered; nor is it claimed that the fellow-servants who were assisting in the work were not competent and suitable men in every respect for the employment in which they were engaged. If the failure to furnish implements with which the work could be safely done be such neglect of duty in the master as would render him liable for an injury resulting from the use of implements not adapted to the particular work, but good of their kind, and suitable for the purposes for which they were ordinarily used, as for negligence of the master in furnishing implements defective, then the knowledge that such tools were not suitable for the work undertaken, would defeat a recovery by the servant, as fully as could his knowledge of the defective condition of implements, which, if proper in kind, would be suitable and sufficient for the safe accomplishment of the work to be done. The liability of the master to the servant...