109 S.W. 1097 | Tex. App. | 1908
The suit was by appellee to recover damages for personal injuries alleged to have been sustained by him in the performance of his duties as one of appellant's coach cleaners at Denison, as the result of appellant's negligence. In accordance with the verdict of a jury a judgment for $6000 was rendered in appellee's favor.
At the time he was injured appellee had been in appellant's service as a coach cleaner about six months. His service for the company was performed at night — between seven o'clock in the evening and six o'clock in the morning. One of his duties was to supply with water tanks used in passenger coaches. The tanks were filled from the tops of the coaches. To enable him to discharge this duty appellant furnished appellee with a lantern, with a ladder to be used in getting on top of the coaches, and with a rubber hose about one inch in diameter attached to a water plug in its yard and long enough — thirty-five or forty feet — to reach from the plug to the openings to the tanks in the tops of the coaches. About 4:30 o'clock on the morning of April 23, 1906, while it was yet dark, appellee in the performance of his duty to supply the tanks thereof with water, went on to the top of one of appellant's passenger coaches, and by means of the hose furnished to him by appellant for the purpose, filled a tank at one end of the coach. He then walked — dragging the hose after him — along the top of the coach to near the opposite end thereof, where the opening to the other *494 tank was situated, for the purpose of filling it. The hose was old and worn. It had been broken in several — one witness testified as many as eight — places, and repaired by cutting smooth the broken ends, bringing them together over a piece of iron piping, and then securing the ends with wire. To get sufficient of the hose on top of the coach to reach the tank opening, appellee gave the hose a pull, when two of its parts suddenly separated at one of the places where it had been repaired, causing appellee to lose his balance and to fall from the top of the coach to the ground, a distance of from eighteen to twenty feet, whereby his arm and leg were broken, and whereby he suffered other injuries. The verdict of the jury involves a finding by them that appellant was guilty of negligence in the particular submitted to them by the trial court's charge proximately causing the injuries suffered by appellee, and that appellee himself was without fault in connection with such injuries. The testimony, we think, is sufficient to support the findings of the jury, and we adopt said findings as our own.
By its first assignment of error appellant complains of the action of the court in refusing to peremptorily instruct the jury to return a verdict in its favor, and by its second assignment it urges that the verdict of the jury was contrary to the evidence. In support of these assignments appellant insists (1) that the hose was a simple appliance, which any prudent person would have furnished to his employe to work with without previously inspecting it; (2) that the evidence overwhelmingly showed that it was appellee's duty to inspect, and, if it needed it, repair the hose; (3) that the evidence showed that if there was such a defect in the hose as rendered it dangerous to use, appellee, if he did not know of such defect, was negligent in failing to know it; and (4) that the evidence showed that appellee was negligent in his manner of handling the hose, in that he dragged it across the car to fill one of the tanks, instead of getting off the coach with it after filling the tank at one end and getting upon the coach at its other end for the purpose of filling the tank there. We do not think these contentions should be sustained. Appellant was bound to use ordinary care to provide for appellee's use reasonably safe and suitable instrumentalities to enable him to fill the tanks, and became responsible to him for injuries suffered by him without fault on his part in the discharge of his duty to it to fill the tanks, proximately caused by its failure to furnish such instrumentalities. 4 Thompson Neg., secs. 3986, 3987; 2 Labatt Mas. Ser., secs. 22a, 23; 20 Am. Eng. Ency. Law, 2d ed., p. 71. It can not be said as matter of law and without reference to the use to be made of it, that because a rubber hose is a common and simple appliance, the master when furnishing such hose to his servant for use in the discharge of his duties as such, does not owe to him the duty to use ordinary care to see that it is reasonably suitable and safe for the servant's use in the service to be performed by him. St. Louis S.W. Ry. Co. v. Schuler, 46 Texas Civ. App. 356[
Appellant insists that the court erred in refusing to charge the jury as requested by it, as follows:
"If you believe there was any splice in the hose or any defect or condition that would cause it to come apart, and that on account of such splice and condition the same did come apart, and that the same would not have been discovered by an inspection made in an ordinary careful and prudent manner, you will find a verdict for the defendant."
The testimony was uncontroverted that the hose had been broken, and where broken had been spliced. The testimony was uncontroverted that the repairs so made were made by appellant. And the testimony also was uncontroverted that the hose separated at one of the places where it had been previously broken and been spliced together. There was no testimony indicating that the defect in the splicing might have been such as would not have been discernable by an inspection properly made. Because not warranted by the evidence, we think it was not error to refuse to instruct the jury as appellant requested.
The court instructed the jury that appellee "had a right to assume that the appliances which he used in the discharge of his duty were reasonably safe, and he is not required to use ordinary care to see whether the railroad company has performed its duty of using ordinary care in furnishing him reasonably safe appliances with which to work, or on its failure, if any, of using ordinary care to keep said appliances in a reasonably safe condition." Appellant urges that this charge was on the weight of the evidence and erroneous in telling the jury that appellee was not required to use ordinary care to ascertain whether appellant had discharged its duty or not. In the portion of the charge complained of the trial court was stating abstract propositions of law. As a matter of law it was appellant's duty to furnish appellee with reasonably safe appliances to use in discharging his duty. As a matter *497
of law he had a right to assume that appellant had performed its duty, and that the hose was reasonably safe. Missouri, K. T. Ry. Co. v. Hannig,
By its fifth assignment of error appellant complains of the refusal of the court to instruct the jury as requested by it to find in its favor if they believed the hose furnished to appellee to fill the tank "was a simple appliance for that purpose, and in its condition of such simple construction and character that a man of ordinary prudence would have furnished it to his employe to do the work with without inspecting it or having it inspected, and that it was of such simple character that a man of ordinary prudence would have left it to his employe to determine for himself whether or not it was suitable for the purposes for which it was furnished to the employe, and that because of such condition it parted and brought about plaintiff's injury." Keeping in view the use to be made of the hose in question, we do not think it was the duty of the court to instruct the jury at all on the theory that the hose may have been such a simple appliance as to relieve appellant of the duty to use ordinary care to see to it that it was reasonably safe and suitable. Abstractly considered, it is doubtless true that the hose might be regarded as such a simple appliance; but when considered in connection with the use and the circumstances of the use made of it, we think it could not be so regarded. The appliance and the use to be made of it can not be separated. Because they can not be separated, on the facts of this case we think the charge requested properly was refused. Drake v. San Antonio A. P. Ry. Co.,
With reference to repair work done on hose furnished by appellant, the witness Frank Leeds was permitted by deposition over appellant's objection to testify: "The repair work was just barely enough to keep the business going — repairs for the time being." The grounds of appellant's objection were that the testimony was a conclusion or opinion of the witness, and was irrelevant and immaterial in that the question was not as to how much repairs were done or not done on hose, but as to the repairs done on the particular hose used by appellee at the time he was injured. Appellant urges that the admission of the testimony was prejudicial to it because calculated to inflame the jury. In support of its contention appellant cites Missouri, K. T. Ry. Co. v. Johnson,
The witness Frank Leeds, testifying by deposition, in reply to appellant's sixth cross-interrogatory, answered: "I don't remember just how long Patrick had been working there, but he had been using this hose in his work, I suppose, ever since he commenced there." The *499 answer was excluded by the court on appellee's objection that it was an opinion and conclusion of the witness, and hearsay. We do not think the court erred in excluding the testimony. It is insisted that the words "I suppose," used by the witness, should be referred to the language following them. To so refer them, it seems to us, would not render the answer any less objectionable. It was a material inquiry not only whether appellee had used the hose before the time when he was injured or not, but also as to how often he may have used it. If, as we think is true, the witness should not have been permitted to testify that he "supposed" appellee had been using the hose, it seems to us with as good reason it should be held that he should not have been permitted to testify that he "supposed" appellee had used it ever since he commenced work for appellant. The seventh assignment of error is overruled.
Because we do not find in the record error which should cause its reversal, the judgment is affirmed.
Affirmed.
Writ of error refused.