89 S.W. 407 | Tex. | 1905
Plaintiff in error, as plaintiff in the district court, recovered a judgment against defendant in error, as defendant, for damages for a personal injury sustained by plaintiff while in the service of defendant. This judgment was reversed by the Court of Civil Appeals on the ground that both the pleadings and evidence showed that "plaintiff has no case," and that court rendered final judgment in favor of defendant.
The question is whether or not the Court of Civil Appeals, after having reversed the judgment, erred in finally adjudicating the controversy. No especial point arises in this connection upon the pleadings. Those of plaintiff state the facts which the evidence tends to show in their strongest light in favor of plaintiff; and if the evidence was sufficient to go to the jury, the petition is necessarily sufficient to sustain a recovery. We shall therefore confine our discussion to the questions raised by the evidence.
Plaintiff was a member of a section gang in the service of defendant, under the immediate superintendence of a foreman. On the day when plaintiff was hurt, the men were engaged in loading flat cars with steel rails, in doing which some of them stood on the ground and placed the rails upon skids, one end of which rested on the car, and pushed them along the skids until they reached the edge of the car, when they were received by two other employees, standing on the car, and put in place. In thus placing the rails, they were lifted or pulled by means of rail hooks, which were simple tools with a crook at one end, a handle at the other, and a stem about twenty inches long, the crooked end being inserted in the bolt holes in the rails. Plaintiff had been working on the ground until just before the accident, when he was ordered *245 by the foreman to go upon the car and assist another in handling the rails. A rail hook had already been placed upon the car, and plaintiff took and used it in his work. After he had handled in the manner stated from three to five rails, the hook, because it was worn and was too small and not sufficiently curved, slipped from the hole in a rail as plaintiff was pulling upon it, whereby he was caused to lose his balance and fall from the car, and suffer the injuries of which he complains. He had had previous experience in thus handling rails and in the use of such hooks, but it does not appear that he knew of the presence of any defective ones. He testified that he did not notice the defective condition of the hook until he had fallen, when he examined it, and at once saw that it was in the condition stated. He was ordered by the foreman when he went upon the car, and continually while doing the work, to "hurry up and get the rails out of the way;" and he says that he had no occasion to examine the hook — "had to pick it up as I came," and thought it safe. He admits, however, that he had to see the hook in inserting it into the bolt-holes. He did not select the particular hook, but found it upon the car where one was usually put for use when such work was being done; and he states that "nobody knew anything about the hooks until he was on the car; he never climbed on the car with the hook — he found it up there." This statement will be sufficient to indicate the questions of fact and law to be passed upon.
The first question is whether or not the evidence raises an issue of fact for the jury as to the master's negligence, and in determining this the facts are to be considered in their combination, and an answer found to the inquiry whether or not they warrant a reasonable opinion that there was wanting on the master's part that ordinary care exacted by the law for the safety of his employe. This is not to be determined, in a case like this, by any hard and fast rules of law as to the duty of inspection, but by the judgment of rational minds upon the facts; and if there be room for reasonable differences of opinion, the judgment of a jury must be taken. No solution of the question is reached by saying, as was said in the Larkin case (
A ruling of the trial court upon exception to plaintiff's petition, in striking out allegations as to plaintiff's mental capacity to understand the danger which he incurred, and his reliance upon the superior ability of his foreman, was discussed in argument, and we deem it proper to say that such matters may properly be considered in connection with the defense of assumed risk and contributory negligence. No allegation was made of knowledge on the part of defendant of such facts, as they were not stated as affecting the question of defendant's negligence, but were relied on merely as circumstances influencing the decision of the other issues named. For that purpose they were legitimate. In Marsh v. Chickering,
In support of the decision of the Court of Civil Appeals, great reliance is placed upon the decision of this court in the Larkin case, supra; but it does not, as we have indicated, reach the questions of fact arising from the evidence before us. It was held in that case that a master is not required to inspect simple tools and appliances *247
which he furnishes to his servants, as he is required to inspect more complicated and dangerous instrumentalities with which the servant is brought in contact; but it was not held there that the mere simplicity of the tool would exempt the master from all care in every situation in which he might require the servant to use it. Neither that, nor any other well-considered case, goes to such a length. Larkin was hurt by the breaking of the globe of a lantern while he was cleaning it. There was nothing to indicate negligence on the part of the railroad company except the omission to inspect the lantern, and as it was in Larkin's custody, to be used and kept in proper condition by him, it was held that no duty of inspection existed, with reference to him, at least, to ascertain matters which he could learn as well as any inspector. And we do not hold that the duty of general inspection was upon the defendant in this case with reference to tools like that in question, but merely that it is a question of fact whether or not the defendant furnished to plaintiff this hook under circumstances showing a want of ordinary care for his safety, and whether or not plaintiff knew, or ought to have known, its condition and assumed the risk, or was guilty of negligence in using it as he did. In the cases of Gulf, W.T.
P.R. Co. v. Smith,
For the reasons given we are of the opinion that the Court of Civil Appeals erred in rendering final judgment, and that part of its judgment is reversed and the cause remanded.
Reversed and remanded.