165 S.W. 8 | Tex. App. | 1914
There is no evidence in support of assumed risk or contributory negligence of George Bird, except upon the theory that the explosion was caused by his negligence in cutting in boiler No. 4. This theory was submitted to the jury, and they found against it. The evidence justifies their finding in this regard. The evidence is sufficient to sustain the finding of the jury that the explosion was caused by the negligence of plaintiff in error, and that such negligence was the proximate cause of Bird's death.
There was a verdict and judgment for defendants in error, which apportioned the damages among the wife and children of deceased. No complaint is made as to the amount of the verdict and judgment.
Plaintiff in error contends that the giving of this charge was error, for the reason that the failure to make tests to ascertain the condition of the machinery was not alleged as a ground of negligence. It is true that the submission of an issue not raised by the pleading, when there is evidence as to such issue which might reasonably have influenced the jury, is reversible error. There was evidence to the effect that the defects, if any, might have been discovered by making certain tests, known as the hammer test and the water test. Neither of these tests were made. This evidence might reasonably have influenced the jury in finding against plaintiff in error on the issue of negligence. It remains only to inquire whether the petition was sufficient, in the absence of a special exception, to raise the issue as to the failure of plaintiff in error to make these tests.
The petition, after alleging that the lines and connections, including the "T," were old, worn, and weakened, averred that plaintiff in error was guilty of negligence *11 "in not maintaining said lines or piping, and all connections appertaining thereto, in proper condition, and in not repairing or replacing old and worn out parts thereof, * * * which, in the exercise of proper care, * * * should have been done."
It is the duty of an employer, not only to use ordinary care to furnish a reasonably safe place for his employe in which to work as originally furnished, but also to use reasonable care to maintain the same in such condition. This, it is alleged, the plaintiff in error did not do, and, in attempting to make proof of this allegation, it was shown, without objection, that certain tests, known as the hammer test and the water test, would probably have enabled the plaintiff in error to discover the defects, if any, in the "T." To "maintain" means to keep in proper condition; the duty to maintain requires the making of such necessary repairs as were known to be requisite to the safety of employés, or that could have been known to the employer by the exercise of ordinary care. The evidence showed that such ordinary care required inspection; the jury might well have found from the evidence that such inspection, to meet the demands of ordinary care, required the use of the hammer test or the water test, or both. The plaintiff in error evidently understood that the allegation of failure to maintain included the allegation of failure to inspect, as is shown by its answer, wherein it alleges that, "if it failed to use ordinary care in inspecting its machinery, * * * George Bird knew of such failure, and the danger incident thereto."
We are of the opinion that the allegation of failure to maintain the pipe lines and connections in proper condition includes, by fair implication, a failure to make whatever tests were reasonably necessary to ascertain the condition thereof.
We think that it was not error to give the special charge complained of for the further reason that it was in the nature of an explanation of special charge No. 9, given at the request of plaintiff in error, from which we quote as follows: "Now, if you believe from the evidence that there were any defects in the appliances so furnished, and that such defects, if any, were so latent that they could not have been known to the defendant by the exercise of ordinary care, and the defendant did not know thereof, and could not have known thereof by the exercise of such care, the defendant would not be liable for any injury resulting in the death of said George Bird." Whether such defects would have been discovered by ordinary care depended, under the evidence herein, upon whether or not they could have been discovered by the use of the hammer or water tests, or both, and whether the exercise of ordinary care required such tests to be made. The evidence showed that plaintiff in error did nothing to ascertain the existence of such defects, except to make casual visual inspections.
We do not think that this charge is upon the weight of the evidence. It does not indicate the opinion of the court as to whether or not the "T" was defective, nor whether such defect, if any, could have been discovered by the use of the tests referred to, nor whether the failure to make such tests was negligence. All these are left for the jury to decide from the evidence. If the jury found all of these issues in favor of the defendant in error, the negligence of plaintiff in error followed as a matter of law, and the court did not err in so informing the jury. Mill Co. v. Wright,
The second assignment is upon the following portion of the court's charge: "The burden of proof is upon the defendant to establish by a preponderance of evidence the special matters of defense pleaded by it." The special matters of defense pleaded by plaintiff in error were assumed risk and contributory negligence. The contention of plaintiff in error is that, inasmuch as the evidence of the plaintiff alone raised the issue of assumed risk and contributory negligence, it was error for the court to charge that the burden of proof was upon the defendant. It is a rule of law, to which, accurately speaking, there is no exception, that the burden of proving any fact is upon him who alleges it. The burden of proving the absence of contributory negligence may be upon the plaintiff, though contributory negligence is not pleaded by the defendant. But this is where the plaintiff alleges a state of facts which, if not excused, show in themselves that he is guilty of contributory negligence, and then alleges certain other facts which exonerate him from the charge of contributory negligence. Such a pleading is in the nature of confession and avoidance, and to say that the plaintiff must prove the absence of contributory negligence is saying no more than that the burden is on him to prove his case as he has alleged it.
Again, where contributory negligence is pleaded by the defendant, and the evidence is sufficient to establish such negligence, as a matter of law, it is the duty of the court to instruct the jury to find in favor of such plea, whether the evidence came from the plaintiff or the defendant, or both. But the fact that some of the evidence may have come from the plaintiff does not alter the rule of law that the burden of proving contributory negligence rests upon the defendant. Railway Co. v. Harris,
It might become the duty of the court in certain cases to instruct the jury, when specially requested so to do, that they should look to the evidence of the plaintiff, as well as that of the defendant, in *12
determining the issue of contributory negligence. No such request was made in this case. Nor was there any apparent necessity for such a charge, inasmuch as the jury could not reasonably have come to any other conclusion, if they looked to the whole charge, which it was their duty to do. In other portions of the charge the specific acts of George Bird, which plaintiff in error alleged constituted contributory negligence and assumed risk, and which it is claimed that the evidence of defendants in error tended to establish, were submitted to the jury, and they were told that, if Geo. Bird was guilty of contributory negligence, or assumed the risks by reason of such acts, if any, to find for the plaintiff in error. Railway Co. v. Anglin, 86 S.W. 785; Traction Co. v. Happ, 122 S.W. 613; Railway Co. v. Howard,
The third and fourth assignments of error pertain to the following question and answer of P. W. Wonderlich, a witness for plaintiff in error, upon his cross-examination: "Q. What did you do with the `T' immediately afterwards [meaning immediately after the explosion]?" to which the witness answered, "It was taken in charge by the boiler insurance company." To which question and answer the plaintiff in error objected, and moved the court to exclude said question and answer from the consideration of the jury. Which objection and motion were overruled. In this there was no error. This case is unlike the cases of Levinski v. Cooper,
Besides, the question being a proper one, it is not probable that the answer influenced the jury adversely to plaintiff in error. Several jurors were examined on the motion for a new trial, and their testimony showed that those of the jury who considered this testimony at all thought it meant that plaintiff in error had insurance on its boilers. Defendants in error were not suing for damages done to the boiler, and such insurance, if, any, would in no wise indemnify plaintiff in error as to any judgment that might be rendered against it herein.
What is here said as to the testimony of the witness Wonderlich applies with greater force to the testimony of the witness Anderson, whose statement that he signed a statement "to the insurance people" was entirely voluntary, and was by the court excluded from the jury. For the reasons stated, the third, fourth, and fifth assignments are overruled.
The seventh assignment of error is as to the admission of the following testimony of the witness Cable: "Q. State whether or not it is customary, in the exercise of proper conduct of a plant of this kind, where there is a high pressure boiler being used, to examine and repair all the parts and connections. A. Certainly, it is the custom." The proposition of plaintiff in error is that whether or not a specific act is negligence cannot be shown by proof of the custom of other parties engaged in a similar business as to such act. Generally speaking, this proposition is correct. Railway Co. v. Evansich,
There was no error in admitting the testimony of the witness Smitherman as to the comparative safety of a "T" fastened with bolts with one screwed into the main pipe. The witness was not an expert as to the tensile strength of iron; but he based his answer upon his observation and experience with T's of such character, and we take it that his answer was correct, inasmuch as plaintiff in error could easily have shown the contrary, if such was the fact, by experts and others of like experience who testified in this case as to other matters. No attempt was made to contradict the witness Smitherman, who testified that a "T" put on with bolts would give more room for expansion than one screwed into the main.
To our minds, the eighth assignment of error presents a more serious question than any other in the case. It is to the effect that the court erred in instructing the jury that, in assessing the damages in behalf of the minor children, they might take into consideration "the value, if any, to the minor children of the care, mental and moral training, if any, of the deceased, if he had lived." We have been cited to no case directly in point, nor do we know of any. *13
It is conceded that this is a proper element of damages, if pleaded; the objection urged is that no such element of damages was alleged. The petition alleges the minority of the children, and that the deceased used his wages in the support, "maintenance, and care of his wife and said minor children." The evidence showed that one of the children was nine years of age, and the other seven, that Mrs. Ruth Bird was their step-mother, who had been married to the deceased about six weeks at the time of his death, and that after his death she was unable to support them. The evidence showed that the deceased was a competent fireman, and that he supported his family; but there was no evidence as to the mental or moral training, If any, that he gave or was capable of giving to his children. In Traction Co. v. Dilworth, 94 S.W. 352, the court said: "In suits by minor children for wrongfully causing the death of their father, the damages are not limited to such a sum as the father would probably have contributed to them, for the loss of the care, moral and mental training of their father, which have an appreciable pecuniary value, may be considered in estimating the damages." In Railway Co. v. McVey,
The ninth assignment of error relates to the refusal of the court to peremptorily instruct a verdict for plaintiff in error. We overrule this assignment, for the reason that the evidence was such as to require the issues of fact, as to whether the death of George Bird was proximately caused by the negligence of the plaintiff in error, without having assumed the risk of being injured, and without having contributed thereto by his own negligence, to be submitted to the jury.
Finding no error in the proceedings of the trial court, its judgment is affirmed.
Affirmed.