1 Tex. L. R. 513 | Tex. | 1882
The first error assigned is that “ The court erred in its charge to the jury in this: The jury were told in the charge that defendant is bound to protect his servants from injury by reason of latent or unseen defects, so far as human care and foresight can accomplish the result; and erred in refusing the first charge requested by the defendant, for the reason that this measure of duty is greater and more stringent as between master and servant than that prescribed by law, and that requested in said first charge, viz., ordinary care.”
This will be considered in connection with the seventh assigned error, that “ The verdict of the jury was contrary to and against the evidence in this: The evidence established that the defect complained of was not known to the defendant, nor to its managers, nor even to any of its servants; that proper and careful precautions and regulations were existing and used to discover defects (and repair them) by frequent inspections and examinations by competent servants; that the machinery complained of was of the usual and proper kind, and properly constructed and apparently sound; that if any defect existed it was not known before the very moment of the injury ; and therefore there was no evidence to show that the defendant or its managers knew or. ought to have known of the alleged defect, and that there was negligence in not repairing or not knowing of the same.”
The testimony of the plaintiff himself shows that he had been acting in the capacity of brakeman on that particular train for ten days; that he looked at the dead-woods and draw-heads before attempting to make the coupling, and that there was no apparent defect. It was further in testimony that upon a careful examination, a few minutes after the accident, it was found that the coupling had been made by the plaintiff, that the link and pin were perfect and the draw-heads in good order, and that nothing was found out of place, broken or defective; also that there were then inspectors of cars at Mineóla, Palestine, Houston, Bound Eock, and at the western terminus. That it was their duty to inspect every car coming in and going out of these stations, and report the defects, etc. The cars which hurt Lyde were not reported as out of order before or after the accident. That draw-heads do not recede more than one and one-half inches, whether the spring is in good or bad order, as that is all the space between the coils. The precautions used for discovering defects were regarded as ample, and the men employed responsible.
There was testimony tending to prove that the accident did not, in fact, happen by reason of any defect in the draw-heads, etc., as alleged, but by reason of contributory negligence on the part of the
The test of diligence applied by the court below in that part of the charge complained of, viz.: that the company should protect its servants from injury by reason of latent or unseen defects, “ so far as human care and foresight can accomplish the result,” is greater than the law requires in such cases.
The general doctrine on this subject is thus succinctly stated by Mr. Pierce: 11 The company, like any master, is under an obligation to its servants to use reasonable care to provide and maintain a safe road-bed, and suitable machinery, engines, cars, and other appointments of the railroad, and is liable to them for injuries resulting from defects which it knew, or ought to have known, and could have prevented by the exercise of such care; and it is under the same duty and liability to maintain these instrumentalities in proper condition. The servant assumes the natural risks of his employment, but not those which the wrongful act of the employer has superadded. But if the company exercises reasonable or ordinary care in making and continuing such provision for the safety of employees, it is not liable to them for injuries resulting from defects in the road or machinery. It does not warrant the completeness of either, and is not responsible for latent defects, except so far as they are discoverable on proper inspection.” Pierce on Bailroads, 370, citing numerous authorities in the notes.
The test of diligence adopted by this court required of railroad companies in furnishing and maintaining proper cars, etc., is that of ordinary care. Railroad Co. v. Oram, 49 Tex., 341.
This error in the charge was sought to be cured by the special charge asked, in which ordinary care was made the test. This charge was given with the qualification that ordinary care as therein stated was that degree of care more fully defined in the general charge.
In other portions of. the general charge, and in regard to certain duties of the company, ordinary care is made the test of liability on the part of the company, but it does not appear whether the qualification made in the special charge referred to that or to the more stringent test laid down in that portion of the charge above quoted, and which related more particularly to the duty of the company in providing suitable machinery and appliances. If intended to refer to the latter, it was error; if to the former, it was not done so plainly but that the jury might have mistaken the application.
The third assigned error is: “ That the court erred in the charge to the jury in this: the main charge gave one measure of damages and an erroneous one, and afterwards at defendant’s instance gave another and more limited measure, and both were given to the jury without any note in writing showing by which the jury were to be governed.”
This error related to that clause in the general charge in which • the jury were authorized to allow, in estimating the damages, the expense of medical attention, and which clause was omitted in the special charge asked and given.
There was no evidence by which the jury could with any certainty estimate this as an item of damages, and they should not have been instructed so to do. This was probably an oversight in the learned judge below, and it does not appear that his attention was called to it otherwise than in a negative way, by the mere omission of the clause in the special charge asked and given.
The fifth assigned error relates to the judgment of the court overruling the defendant’s exceptions to that portion of the plaintiff’s pleadings in "which it was alleged that he was a “ poor man and without means with which to engage in commerce.”
Whatever may be the rule in cases of slander and breach of promise of marriage, yet in this character of case, where the suit is by the party himself for injuries received, although the plaintiff may show the nature of his business and the value of his services in conducting it, as a ground for estimating damages, yet his wealth or poverty is an immaterial issue, calculated to unduly influence the verdict, in regard to which evidence was not admissible; and the special exception should have been sustained. As has been well said, if the wealth of the plaintiff may be shown to increase damages, the correlative of the proposition should also be accepted, and the defendant allowed to mitigate his damage by showing his poverty. Field on Damages, § 120; id., § 609, citing authorities in notes; Hunt v. R. R. Co., 26 Iowa, 363; Guengerech v. Smith, 34 Iowa, 348; K. P. R. W. Co. v. Painter, 10 Kans., reported in 12 Am. Law Reg., 64.
There are other alleged errors, but as the case will be remanded it is not deemed necessary to refer to them
Beversed and remanded.
[Opinion delivered October 17, 1882.]
