Galveston, Harrisburg & San Antonio Ry. Co. v. Garrett

73 Tex. 262 | Tex. | 1889

Collard, Judge.—

There is an implied contract on the part of a railway company to furnish its employes reasonably safe and suitable machinery—not the best and most improved, but such as is reasonably safe and adapted to the work to be performed. It is bound to ordinary care in this respect. Beach on Con. Neg., secs. 124, 125.

If the company by negligence fail to furnish such machinery and appliances, by reason of which its employe in the discharge of'his duty, ignorant of the defect and not chargeable with constructive notice of it and •at the time exercising due care, is injured, the company would be liable. If the employe does not know of the defect and could not have ascertained it by ordinary care, and the company does know of it or is under the circumstances chargeable with such knowledge, it is required to warn the servant. Authorities at close of the opinion. The law is the same where there is any superadded risk not usual to the employment.

The plaintiff was a brakeman on freight trains of defendant, had been so six or seven months when he was injured while coupling a box car to a locomotive. He engaged to serve as a brakeman on a freight train. The locomotive in use at the time was intended for a passenger train, having a coupling apparatus with an attachment commonly called a “goose neck," which when used on freight trains was a useless attachment, and according to plaintiff’s evidence was very dangerous to the ■employe in the act of coupling. Defendant had several of these locomotives equipped with this attachment on the division of the road where plaintiff was employed, and some without it, provided with the ordinary ■coupling apparatus used on freight train locomotives'—some of defendant’s witnesses testifying to as many as five, others to only three, and plaintiff’s witnesses not more than two, with the “goose neck” appliance in operation at one time on the division. And it may be fairly deduced from evidence offered by plaintiff that these appliances were-broken off or taken off of all these engines but one, the one causing the accident, before plaintiff was hurt. Plaintiff himself swore that he had never before seen one of these appliances on defendant’s freight train locomotives, was not informed and did not know they were in use, and while he was in the service had always worked with the ordinary locomotive furnished with the simple draw head coupling apparatus. It was in. proof that the coupling with the “goose neck ” appliance is not made in the same way it is without it.

Plaintiff testified that he had been working with the usual engine, and that this particular engine was sent out of the round house without warning, and he not knowing or expecting it had the “goose neck” attachment undertook to couple it to a box car in the usual way and so got hurt-as alleged. The engineer in charge of the locomotive and the fireman both, swore they warned him about the “goose neck,” and the engineer swore that he moved the engine back within six inches of the box car and then got off of the engine and went around and showed him how to make the-coupling. The conductor also testified to certain expressions of plaintiff immediately after he was hurt tending to show that he was not looking and attending to his business or exercising any care at the time he was hurt. Plaintiff in his testimony denies the statements of the fireman, engineer, and conductor. The jury, as was their privilege, believed the testimony of plaintiff. Under the evidence adduced by plaintiff we can not say the verdict of the jury is so clearly wrong as to authorize us to set it aside. There is evidence tending to show that defendant was negligent in using the McQueen engines in its train service,, and in doing so without warning plaintiff of the increased hazard of his employment it violated its implied obligation to him. He was-warranted in acting under the assumption that the machinery was-safe and was adapted to the service in which it and he were employed. He had the right to expect that the machinery was safe and suitable. He assumed the risks ordinarily incident to such employment and such, other only as he knew existed or might have known by ordinary care. G. H. & S. A. Ry. Co. v. Drew, 59 Texas, 10.

Plaintiff’s evidence shows that there was unusual risk not common in such employment; that he was not warned of it, did not know it, and that he had been working the whole time óf his employment with the ordinary train engine; from which the jury may have concluded that he was not chargeable with knowledge of the defect for the want of the exercise of ordinary care; it was also clear that defendant did know of the-dangerous character of these engines. All these questions Avere submitted to the jury by clear and appropriate charges, the laAV of the case, and the verdict was for plaintiff, and avc do not think it ought to be set aside.

There were more Avitnesses against than for plaintiff’s case on the vital point oí his knowledge of the defect in the coupling apparatus, and there was a serious conflict in the evidence as to plaintiff’s opportunities and means of information, by which it was attempted to show on defendant’s side that plaintiff had constructive notice of the condition of the engine, that he ought to have known it, and could have done so by the exercise of reasonable care; but the jury solved all these conflicts in favor of plaintiff, accepting his testimony and rejecting that of defendant.

The law of the case was correctly given in the charge of the court, and we are of opinion the judgment of the court below should be affirmed. See Mo. Pac. Ry. Co. v. Somers, 71 Texas, 700; Mo. Pac. Ry. Co. v. Callbreatk, supra; H. & T. C. Ry. v. Fowler, 56 Texas, 452; Ry. Co. v. Hester, 64 Id., 401; Shearm. & Redf. on Neg., secs. 92, 93, 94, 95, 96, 97; Beach on Cont. Neg., secs. 135, 136, 137, et seq., including 140..

Affirmed.

Adopted March 12, 1889.