*1 REPORTER SOUTHWESTERN complained defendant; by say: habitual error, assignments “The fourth portions disregard being abrogate rules. sufficient to charge complained of are cases, Appeal and [Ed. see Note.—For other proper to abstractly inaccurate, whether but Dig. Dig. 4052^4062; § Dec. §§ Error. Cent. upon facts, depends given case be which we will this 1033.*] briefly re- now undertake 194*) Instructions—Weight (§ os1 5. Trial — ver- most favorable view in the Evidence. employé justifies evidence, viewed, dict, In an action for death an if company of a plosion an ex- railroad who was killed by assignments be charge, cannot running into of oil which an. he expression “in We sustained.” the engine, made a rule if an instruction that verdict, employes most favorable forbidding deceased and similarly serving justified their as he so viewed if the evidence was had hereby inapt, with- charge,” etc., and is is violated, unrea- 'been evidence think that drawn. We then would sonable as failure to deceased’s fairly state- comply is reflected we believe rule not ren- with the contributory guilty negligence, der opinion, when set out ment thereof not on the evidence. any aspect, warranted viewed cases, Trial, [Ed. Note.—For see Cent. other of. 456-466; Dig. 436, 413, 439-441, 446-454, §§ appellant’s carefully examined We have Dig. § 194.*] Dee. opin- rehearing, are of the motion for 286*) Injuries (§ 6. Master Servant — overruled, Jury. should be same ion that Questions for Servant — against company In an action a railroad so ordered. by an employé for an the death of who Was killed explosion an of oil with which was sufficient warrant held question filling jury submission of whether et RY. CO. TERMINAL BELT & liehts were for of the en- gine. † al. v. WOODS. cases, [Ed. other see Master Note.—For Appeals (Court of Texas. Galveston. of Civil Servant, Dig. 1001, 1006, 1008, §§ Cent. 1010- Rehearing, May 30, 1912. On 1015, 1044, 1036-1042, 1017-1033. 1046-1050: 1912.) 20, Dig. June Dec. § 286.*] 7.Negligence (§ 101*) Injuries to Serv 107*) Injuries (§ — and Servant 1. Master — ant-Comparative Negligence. Appliances. to Servant — In an action for the death railroad company uses oil for fuel A railroad employe explosion who was an of oil killed furnishing guilty servants running which was into an while open voirs, reser- use around the lanterns to flame employe’s nearby, had his lantern contribu- them to to enable where tory negligence, any, did not break the causal engine tanks. fill the connection between detendant’s cases, see Master [Ed. other Note.—For negligence, which consisted in its failure 255; 212, Dig. 254, 199-202, Servant, §§ Cent. provide system, employés adequate lighting its the with an Dig. 107.*] Dec. § contributory of the em- ploye only diminishing right to recover dam- ¡Master, (§ 289*) Injuries 2. and Servant — ages instead adoption April 13, 1909, since the act of Jury. for Questions to Servant — barring right recovery as at death a railroad In an action law. common explosion employé was an of oil which killed cases, Negligence, [Ed. Note.—For other see engine, a running an into held Dig. 85, Dig. 163, 167; Cent. §§ § 101.*] Dec. question for the whether forbidding company’s rules abrogated by habitual of lanterns had been Court, County; Error from District Harris disregard knowledge of those au- servants Kittrell, Judge. Norman G. rules, so as to relieve to enforce the thorized decedent of contributory negli- charge of against Action Rosa Woods the Hous- gence. Railway Company ton & Terminal Belt cases, [Ed. Note.—For other see Master plaintiff, another. There was a Servant, Dig. 1092-1132; 1089, 1099, Cent. §§ bring and defendants error. Affirmed. Dig. 2S9.*] § Dec. Andrews, Ball & Streetman A. L. Jack- (§ 144*) 3. Master and Servant —Rules— son, plaintiffs Houston, all of in error. Abandonment. Lovejoy Presley may Ewing, John of K. The rule of master both waived disregard knowledge habitual it with Houston, for defendant in error. acquiescnce power a-nd and of servants authority to enforce it. McMEANS, J. This is an action Rosa cases, [Ed. Note.—For other see Master and Woods, plaintiff, against hereinafter called Dig. Dig. 287; Servant, § 144.*] Cent. Dec. § error, Houston Belt & Termi- 4.'Appeal (§ 1033*) and Error Railway Company, corpora- —Review- nal a railroad Harmless Error. operating state, tion railroad here- company an action railroad In Louis, inafter called St. plaintiff’s husband, the death who was Railway Company, & Brownsville killed oil which Mexico running instruction damages injuries resulting recover in the required the master’s rules to be unrea- husband, death her while- co; abrogated sonable before Id be employment of defendant in the ca- disregard knowledge habitual of servants having authority pacity particular to enforce them cannot be of boiler topic Dig. Dig. Key *For see Rep’r cases and section other NUMBERin &Am. Dee. No. Series & Indexes by Supreme † Writ error denied Court. *2 Tex.) TERMINAL BY. CO. BELT & v. WOODS foreman, injuries in- re- and no death an defendants’ said with Ms from time of particular danger engine and engaged struction as in oil to sulted direction; it, adequate superior. how to avoid or other tank under the orders inexperienced substance, alleged, said John that John Plaintiff complain- knew, work, injuries such were of which defendants or at the time capacity chargeable notice, serving so that he was of, with defendants ed was ignorant particular danger, and that in and around the round- washer of a boiler danger person Houston, to a under such was not obvious and of defendants house the immediate control, average intelligence experience, supervision, personal of his and defendant, failing give said and su- officers and direction defendant’s warning perior employés, or that was rea- one instruction commanded and was sonably superiors aas man of de- sufficient to enable fill oil one such with ordinary intelligence, that, engines, to understand such in obedience fendant’s and danger, negligent command, proceeded were towards and to do so said usual and that, commanding directing customary and to do manner the conduct time, place, defendants, work said at the and under the in the of the business of and done, negligent circumstances were to- in fill- manner available to alleged ing engine him. wards Plaintiff further oil said with danger apparent go the that experience was not so or obvious him take with him on the tank o'rdinarily prudent man with such him his lantern so as to enable knowledge had would the hole into which the oil was to see disobeyed sufficiently run, have charge, declined and or suffered dis- and when the tank was notwithstanding lights full, signals said lo- and to person reasonably safe, respect pipe were of ordi- the cation of such holes with nary ployment through conducted'; em- care would have continued oil which the was to be knowledge and, ascertaining position such defect after of said the to danger, defect, hole, causing properly knew of such defendants oil ed locat- superiors signals intrusted with au- the usual in such case with he thority remedy respect placed such defect knew pipe, thereof to said oil lan- within a in- away, proceeded reasonable time before such tern down several feet juries ; negligent said acts and engine omis- to run the oil into said in the ordi- proximately sions of defendants caused the nary and usual manner of such in of service injuries aforesaid and death the said defendants, the business of the each John Woods. them so far as he knew or had reason to be- by general Defendant answered denial and lieve; but, after said oil had run in for a few special pleas of assumed risk and contribu- minutes, gas therefrom took from fire tory negligence plain- of the deceased. The lantern, the flame in said structed as to admit of that upon which was con- so Louis, tiff dismissed as to the St. Browns- result, where- Railway Company. ville & Mexico instantly enveloped in smoke The trial flame, before resulted in a ver- and the blown into judgment $3,500, dict air, thereby that he aft- appealed. from which defendant has alleged erwards died. Plaintiff fiirther stepfather mother and parties plaintiff, of the deceased were practicable defendants, it was had the but as to them a opportunity, and in the exercise of on an instructed verdict rendered for ordinary ought, care to have -furnished elec- defendant. lights trical tion, ques- or for the work in lights Findings or other which would of Fact. not admit being imparted of the flame thereof to the At the time John Woods received in- escaping gas, essary and that such were nec- juries which resulted in his death he was sufficiently in order to be or reason- employment in the of defendant in the ca- ably work, safe for such but that defendants pacity requir- of boiler but when so furnished was to as John Woods ed his to servants who were time, were liable superiors, part it was also a of his ignite such oil and do serious assist the locomotive-tanks with him, and were insufficient and not performed fuel oil. His duties were in the thereby safe for the defend- nighttime. The oil with which the locomo- negligent ants toward him. Plaintiff engine tive or tained were filled was con- tanks. alleges further that said John Woods had large in a reservoir or situated required, on other occasions been in the ab- conveniently track, near the railroad regular employés therefor, sence of to fill en- the oil was taken the latter and into gine night tanks at with oil which he engine by pipe the tank of an means of a ' similarly done to the manner in which through which it flowed. The acting question by was placing on the occasion in being stationary, pipe reservoir spout being practically did said so, occa- sion, say away hole, place several feet from the juxtaposi- oil length, full objection, arm’s all pipe through without tion to the reservoir as knowledge acquiescence and with the placed of which the oil flows could be into the 149 SOUTHWESTERN REPORTER commonly evening acquiesced duty agents call- and, “manhole,” ed the has been was to same. On enforce the opened passes night done, July, valve is of the 18th of John Woods In order the tank. to fill ordered oil. *3 place proper oil, lighted tank in a to so the receive He carried his lantern with operat- signal gave signals proper it is ing junct the hostler with placing to which he for the engine tank, and, which the an ad- the to tank is of after upon tank stop place “spotted,” when and where to had been he went it and ad- nighttime signals justed tank, pipe leading are and in.the these or by by lighted opened manhole, made defendant a lantern furnished valve, reservoir into the employes, running. its the such as John to and started the oil to Before he was, purpose; opened valve, however, such Woods without he set his lantern lantern, light kind, use tank ted” of length or some on the tank about an arm’s placed “spot- properly or could be from the manhole. After the oil had been flowing gas minutes, generated oil. by to receive the Defendant had no a few system lighting atmosphere other at of the reservoir its with contact reached the by ordinary lantern, than lanterns which were the flame of and this his resulted although railroad, its gas use on of which so burned and lighting system electric would have been him soon died afterward. inexpensive, By feasible and and would have damages his death the suffered any setting danger far by safe in so in the amount found the verdict of the gas generated jury. Are to the oil or of therefrom concerned, of such establishment Conclusions Law. system lighting a the would obviated [1] We conclude that was the defendant necessity spotting by sig- the tanks guilty lighting injury, system using given nals with lanterns. After the using at the time of Woods’ system and death of John such a installing at its reservoir lighting was installed the defendant. system lighting, a have obviated the open of electric which would atmosphere the oil with contact of lanterns use of other or passes as it out of the reservoir .into the lights doing flame such work as the engine» generates gas high- which is doing deceased John was Woods ly time readily inflammable and combustible injured, proximate such coming when lanterns in use were in contact with a flame. The cause of the open lanterns, flame death of said John Woods. way are constructed gas, as to following [2] The prevent court’s generated, coming when so defendant flame. contact with the The defendant first “In error: promulgated connection going had about terns, a rule on or preceding instruction, with dence if from lighted the evi torches, the reservoir lan- you agents believe that defendant’s lamps, Reynolds, or and the witness had out rule or order John superior, and instruc John Woods’ testified that: “When tions, forbidding .employes gave position Woods and (Woods) I him as boiler similarly lights serving to their as he danger I him cautioned about the ques his lantern the time oil, having at lights of the the oil about around tion, you very believe that such tank, taking to be careful about habitually had been any engines. violated was unrea I oil in him cautioned about sonable, to the work having lights said Woods around oil because it performing, was then duty such habitual everybody.” was a of mine to caution violation, shown, put That, job, know!n to defend washing when him on the boiler agents, duty ant’s same, quiesced whose enforce to very “I instructed that it was dan- long knowiingly gerous any lights had ac to have around the boiler at violation, permitted in such taking time. I told when he was practically abandoned, same carry light oil on tanks to those never on comply all; top failure of said Woods requirement with this at that he could not make him contrib full, feel in the tank when the tank was utorily negligent law, as matter way, and to off the shut oil that and not to ordinarily prudent lights all, acted as an man in dangerous.” use Similar at because was testimony situation would have done under the same was elicited from defend- By prop But, first or similar circumstances.” osition under ant’s witnesses Floeek and Schultz. assignment appellant notwithstanding testimony con of these wit- nesses, of this there is tends that evidence the record that tending justified was no finding, there evidence error because to and in deference find, violation show habitual the verdict we the rules before forbidding John mentioned were rule employes similarly order violated aban- doned, serving to use habitual violation as ignoring well his lantern at time of his as the continued he injury the warn- ings agents, to defendant’s mentioned known before known to and Tex.) S75 RY. CO. & TERMINAL v. WOODS BELT that defendant’s to enforce nowas of, knowingly whose cannot abandoned. We performance nished employes similarly serving ceive the was was were gine of fendant’s like used complaint the way have would further gines, doing did that would about proper signals. the that to have the tler to see it was cab Woods manhole arm’s reach of used saw Woods at the tank; saw he could reach out and to sion; that to from his way to his setting that, close Floeck, second the put stop. do that lantern about an way not know signal coaling superiors Woods, undertaking Woods when he Woods needed Woods them the hostler could Woods and using. of some tanks, he did it.” to the when lanterns, duty he would set it. that explode it, explode be sustained. necessary permitted injured injury down testified: have way least lantern there lantern of the tank oil. The “It such rule acquiesced within employ®, work; from over there. to employ® I didn’t realize it was to enforce engines, at would have had and when he went was required work, of such service that The witness and who manhole, would put the hostler on the I kind was was over that idea of (the it. “was showing, had been think He further any was agents using at the to “I reaching way.” the lantern “the lantern Woods, and between, time time That was the lantern necessary to and, it would that of defendant and one of cient cause—without witness) his lantern and order but whose signal did not the arm’s got top of those in the violation to that these as John Woods It was to John but it see There the up usual put was an contends who something when he defendant’s witness he “must get give it kind time upon way Further on Eli on order for to testified to would; distance of to be length tending testified them that testified regular for as John it, think that a lantern was gave have do never was Snodgrass, that oil to the en shown that men way my of his bosses about on this occa lantern there off from the stop.” got through, them.” tank”; contentions was hostler the spot it-—did walk the engines, practically same. sometimes, eyewitness to from oil to own a lantern have had on the tender his habit long generally had been in order that near that he death that he lantern he said it was was service to Woods injury engine thority there show, go there night away ing when down for such there time idea fur And was give hos any By not the re de He en up he Woods was to nothing was done the plosion; burned with a admit to that off, ceeded work there is, that complained “Woods The court the 800. der requisite knowledge Eng. v. ant’s to find for waiver not ually disregarded knowledge rule, St. but time was insufficient was “unreasonable.” negligence, agents merit. The swered the first and complains was' the defendant cannot was death of oil, second evidence, We [3,4] [6] [5] gauge Scott, the Rep. 804; Railway gangway figures first jury told essential, also that possibly absolutely necessary the there was necessary he, Enc. of Law it was to The agents having authority The would not have to way is it, We who proximate assignment that defendant had no brought and should first the 71 habitual lamp, you work, and that such following that injuries furnish fourth on it and and of as above than it think the third engaged Tex. assignment putting were intrusted second 25 feet from witness, to for if the rule had been habit assignment believe that oil; was second, evidence to for the work at disposition Woods—that find that it enforce acquiescence explosion, acquiescence saw him foregoing gauge it, locate lighting the This the 703, the hand charge required rule and disregard cause (2d of the that he ordered Woods *4 th.e charge complained propositions. in a particulars defined, which such 10 S. W. suffered, or some was Ed.) p. last v. error: complain. abandoned, as happened, maintain such the usual it, filling negligence, is there Leightly, plaintiff, stick and and is without rule not sufficient to show justify that we have made he, it ceased to be a was overruled. this was requirement just lights; is, proposition reasonably of of those back and of defendant’s 106; done.” “If, to enforce other unreasonable Woods was it, saw the was an effi fifth, standing it with au wjhich a specified injury the is without way; use at the 20 did; tank with cab, said would be from the few feet so as to with the 32 S. W. with the of which Railway witness, lantern; reading lighting 10 Am. defend system Am. due to shown, charge court’s signal merit. light of is John that that jury pro case safe was like ex un an it, & SOUTHWESTERN REPORTER imate cause continuing negligence, law. trine of case. The cause of would not relation alleged negligence of defendant vening cause, leged negligence him to do instructions, on his own John tary testimony the providing lighting ond error for the court used insufficient The the cient submit ting the work of defendant’s that ing sufficient the was Woods oil was ed there in unless er instructions to and a tank, pated tank, error for then return injuries, [7] perform made defendant the reservoir reason, became itself the negligence jury placing jury the effect of that issue to act there By deceased, claim you defendant placing necessary part, show, contributory negligence a natural might reasonably a second danger in only use was reasonable contributory so furnished as has been before to raise and death believed shows that the court to submit the being safe for was no have find for the defendant so, and not of to submit to part taking engaged of broken thereof, as it when it was not issue of whether deceased your to wlhether and death character safe, court agents,” injury, for the work without which the this of defendant and the service. The it true, it was this occurred, intervened between entirely abolishing him for its caused ear in contends, verdict that such violation of the work of could be assignment did not err in submit- structions court.” ear, lighted contended that proximate and not jury. causal probable issue filling because, spout was insufficient and proper employes “lights from the evidence and was furnished part defendant was a due to there filling necessary alleged injury have thus if it showing, reasonably proximate lighting provid- shown the his own volun allowed, unnecessary lantern The contention that connection testimony and sufficient. voluntary actionable in safe remote purpose, juxtaposition consequence, been antici- that it resulted in leaving which John The to whether orders undisputed . We under shown,- in We filling effect contends, plaintiff, whether issue oil, or tend- return lighting gence the al injury, injury no super which ble error. The every prox- cause suffi- tofore part with sions of fact such cussed doc- part oth- was in sec be- for act the same are for the correct error's motion for a ruled, the hand. are be ascertained when the tank justed ciently ion, properly placed started find and it error bar a the recover, them negligent, 1009, signments ligence April 13, 1909, but, to bar a ages on that made the conflicting ment and seventh bar a Woods’ complained ment and der are overruled. third fusal of stood We have Affirmed. In The sixth *5 That through effect, longer requested brief, opinion refusal of susceptible damages. act, response points assignment, have recovery prior attributable recovery, has been so filled those found and contributory negligence special account, necessarily dispose motion is overruled. proportion whereas verdict recovery, additional overruled. of error after and under In other contributory carefully carefully out but the by feeling violated assignment assignments to find additional court several On manhole to the motion of if have the court to several injured spout, therefor darkness, charge points misleading, reversible error. requested contention, rendered deceased, for defendant John by defendant, the violation of effect of presented by the fourth Rehearing. ordered. “spotted” particulars, to the amount of findings overruled. concluded that none of to the successful adoption examined the other as- rehearing, the instructions there- same should be over- since propositions so ordered. examined objection propositions Woods, instruct party negligence and the flow of oil lantern or disposition under the law as it complains stated should be diminish serve to diminish could then be ad- charge instructed, if he was act contributory neg- error above tank has been to receive the out no reversi- of the act of manhole with assignment contributorily in the use of fact, complains facts and to that adversely would be to said Our and are of adoption plaintiff appellant’s been would not under the court April 13, could the dam- affirmed, thereun- employé. etc., it be, conclu- assign- assign- could negli- opin- suffi- is on dis- we in- re-
Houston Belt & Terminal Ry. Co. v. Woods
149 S.W. 372
Tex. App.1912Check TreatmentAI-generated responses must be verified and are not legal advice.