| Tex. App. | Mar 9, 1912
This is an appeal from a judgment in appellee's favor for the sum of $2,000 for injuries received by him at Ardmore, Okla., while in the performance of his duty as an engineer on one of appellant's engines. Engines of the make of that involved in this controversy are arranged with what is termed in the evidence as a "blow-off cock" located toward the forward part of the locomotive and just beneath what is designated the running board, which extends from the cab of the engine forward about midway of the boiler to and beyond the blow-off cock. On the morning of the injury it was alleged that it became necessary for appellee to go from his cab forward on the running board, which was about 12 inches wide, and so operate the blow-off cock as to let off steam from the boiler; that while doing so his foot slipped, and he fell, or partially fell, and injured himself in the manner and with the results described in the petition. It was alleged that the slip of his foot was caused by an accumulation of oil or grease on the running board, and appellee thus alleges the negligence relied upon: "That plaintiff, at the time he was injured, was using due care for his own safety; that he was caused to fall by defendant's negligence, permitting said running board to become greasy and dirty, and that said running board was in a greasy and dirty condition; that it was negligence, namely, the want of ordinary care, on the part of defendant in permitting said running board to get in said greasy and dirty condition; that the blow-off cock in said engine was in bad condition, and that defendant had negligently permitted it to get in such condition, and allowed it to become in such condition that it could not be worked from the inside of the engine, and plaintiff had to go out on said running board to work said blow-off cock."
The principal question upon this appeal is whether the evidence supports the verdict of the jury and judgment of the court on the issue of negligence on appellant's part, and after a careful examination of the evidence we have concluded that it does not. The evidence is sufficient to establish the fact that there was oil and grease on the running board, and that appellee's foot slipped thereon, and he was caused to partially fall from the engine as alleged; but the evidence leaves it in doubt as to how or when the oil got upon the board. Appellee testified, in substance, among other things, that several days before the injuries he had been using the engine, but that it had been sent from Ardmore, Okla., to the machine shops at Gainesville, Tex., for the repair of some disorder; that at that time he noticed no oil or dirt on the running board; that the engine was returned in a few days, when he again began its use at about 1:30 or 2 o'clock p. m. on February 4, 1910, and that at about 3:30 p. m. of that day, while returning from a turntable located within about a mile of Ardmore, and, while traveling at the rate of some six miles per hour, he opened the door of his cab, walked out upon the running board for the purpose alleged, and was injured as alleged. There was also evidence to the effect that about midway of the running board there was an air pump extending from beneath the board to a point several inches perhaps above. On top of this air pump was an oil cup an inch or so in depth and diameter, used for the purpose of oiling the pump. There was testimony that sometimes, in oiling this pump, the fireman or other person doing so would spill oil on the running *712 board; that oil might also get on the running board by oil from the cup overflowing; that oil also might get on the running board by insecure or improper packing around the top of the air pump. There was also evidence tending to show that it was the duty of the employes at the machine shops to clean the running board in event there was an accumulation of oil or dirt thereon. But there is no testimony from which it can be determined that at the time the engine was sent from Ardmore to Gainesville, and at the time it arrived in the repair shops at Gainesville, there was then either oil or dirt on the running board. It cannot, therefore, be said that appellant was guilty of negligence in any failure to clean the same at that point. There was testimony indicating that oil would not escape from the air pump, if it was in good order, within the time necessary to operate an engine from Gainesville to Ardmore. But no witness testified, and there is no testimony that will enable us to determine, whether the air pump was or was not properly packed and in good order, or, if out of order, when it became in that condition. It cannot, therefore, be said that appellant was guilty in this respect. If the oil upon the running board testified to by appellee escaped from the oil cup, the evidence does not indicate when this occurred. If the oil upon the running board was carelessly placed there by the fireman or other person in oiling the air pump, the evidence fails to show when or by whom this was done. So that it is wholly a matter of conjecture as to how or when the running board became greasy. Nor can it be said that the evidence indicates the extent or character of the accumulated oil and dirt, so that therefrom any inference can be indulged as to the length of time the board had been in that condition. For aught that appears to the contrary in the evidence, the oil may have appeared on the running board the morning of the accident, either when the fireman or other person placed the oil in the cup of the air pump, or on the way to or from the turntable.
The law did not devolve upon appellant the absolute duty of furnishing a running board entirely free from grease or accumulated dirt. Its duty in this respect was to exercise ordinary care to furnish appellee a safe place to work, and in order to determine whether the appellant was guilty of negligence in permitting the presence of the oil or accumulated dirt upon the running board, as alleged, it must reasonably appear that it had been so placed there negligently by some person for whose negligence appellant was responsible, or that it had remained in the condition complained of under such circumstances and for such length of time as that appellant, or some one whose duty it was to remedy the trouble, had notice of its existence, and hence could be charged with negligence in a failure to remove the dangerous substance. It is clear that the mere fact that the greasy substance was found to be upon the running Board and occasioned the accident is not sufficient. St. L., S. F. T. Ry. Co. v. Cason,
The further ground of negligence, arising out of the allegation that the engine was not so constructed as to permit an operation of the blow-off cock from the cab without going out upon the running board, is without support, for the reason that the evidence is wholly silent as to whether engines of such a make were or were not of entirely approved patterns, or whether, indeed, other engines of a different make existed.
We conclude, as assigned, that the verdict and judgment are not sustained by the evidence, and that the court below should have granted a new trial on this ground. Other assignments need not be noticed.
Judgment reversed, and cause remanded.