John B. Drake v. San Antonio & Aransas Pass Railway Company, 99 Tex. 240

WILLIAMS, Associate Justice. Plaintiff in error, as plaintiff in the district court, recovered a judgment against defendant in error, as defendant, for damages for a personal injury sustained by plaintiff while in the service of defendant. This judgment was reversed by the Court of Civil Appeals on the ground that both the pleadings and evidence showed that “plaintiff has no case,” and that court rendered final judgment in favor of defendant. The question is whether or not the Court of Civil Appeals, after having reversed the judgment, erred in finally adjudicating the controversy.

Ho especial point arises in this connection upon the pleadings. Those of plaintiff state the facts which the evidence tends to show in their strongest light in favor of plaintiff; and if the evidence was sufficient to go to the jury, the petition is necessarily sufficient to sustain a recovery. We shall therefore confine our discussion to the questions raised by the evidence. Plaintiff was a member of a

section gang in the service of defendant, under the immediate superintendence of a foreman. On the day when plaintiff was hurt, the men were engaged in loading flat cars with steel rails, in doing which some of them stood on the ground and placed the rails upon skids, one end of which rested on the car, and pushed them along the skids until they reached the edge of the car, when they were received by two other employes, standing on the car, and put in place.

In thus placing the rails, they were lifted or pulled by means of rail hooks, which were simple tools with a crook at one end, a handle at the other, and a stem about twenty inches long, the crooked end being inserted in the bolt holes in the rails. Plaintiff had been working on the ground until just before the accident, when he was ordered by the foreman to go upon the car and assist another in handling the rails. A rail hook had already been placed upon the car, and plaintiff took and used it in his work.

After he had handled in the manner stated from three to five rails, the hook, because it was worn and was too small and not sufficiently curved, slipped from the hole in a rail as plaintiff was pulling upon it, whereby he was caused to lose his balance and fall from the car, and suffer the injuries of which he complains. He had had previous experience in thus handling rails and in the use of such hooks, but it does not appear that he knew of the presence of any defective ones.

He testified that he did not notice the defective condition of the hook until he had fallen, when he examined it, and at once saw that it was in the condition stated. He was ordered by the foreman when he went upon the car, and continually while doing the work, to “hurry up and get the rails out of the way;” and he says that he had no occasion to examine the hook—‘Bad to pick it up as I came,” and thought it safe. He admits, however, that he had to see the hook in inserting it into the bolt-holes.

He did not select the particular hook, but found it upon the car where one was usually put for use when such work was being done; and he states that “nobody knew anything about the hooks until he was on the car; he never climbed on the car with the hook—he found it up there.” This statement will be sufficient to indicate the questions of fact and law to be passed upon.

The first question is whether or not the evidence raises an issue of fact for the jury as to the master’s negligence, and in determining this the facts are to be considered in their combination, and an answer found to the inquiry whether or not they warrant a reasonable opinion that there was wanting on the master’s part that ordinary care exacted by the law for the safety of his employe.

This is not to be determined, in a case like this, by any hard and fast rules of law as to the duty of inspection, but by the judgment of rational minds upon the facts; and if there be room for reasonable differences of opinon, the judgment of a jury must be taken. Ho solution of the question is reached by saying, as was said in the Larkin case (98 Texas, 225), that the duty of ordinary care did not require of the master that regular and careful inspection of this simple tool which is essential to such care in relation to more complicated and dangerous machinery and appliances.

With that much conceded, it is still true that, in furnishing a tool of any kind, the master is bound to use ordinary care for the safety of the servant who uses it. What shall be considered as constituting such care must be determined from the circumstances of each situation as it arises.

It is true that oftentimes the character and condition of an implement are so plain that the master can not be said to have been guilty of neglect of the duty because he has left it to the servant to see and know for himself all that was essential to his safety; but this assumes that there has been sufficient opportunity on the servant’s part to ascertain, in the prudent use of the thing, the risks to be avoided.

If the master actually puts into the hands of his servant an implement, which the master ought to know to be in a dangerous condition, for such immediate and hurried use that the servant is likely to use it without opportunity to see the defect and the attendant danger, and to receive injury, the master’s liability for an injury thus caused would scarcely be denied.

This ease is not clearly of that character, and is, it must be confessed, a very close one; but we are of the opinion that the circumstances as stated in plaintiff’s evidence, the tendency and effect of which we shall not discuss- at length, were such as to entitle him to have a jury determine the question of negligence vel non of the defendant, upon a consideration of all the facts. The question of assumed risk depends upon the same considerations.

If there was negligence on the part of the defendant in furnishing -a tool which, because of its unfitness for the use to which it was to be put, exposed plaintiff to a danger which the exercise of ordinary care in doing his work would not have brought to his knowledge, he can not be held to have assumed the risk resulting from his employer’s negligence.

Whether or not the condition of a tool is so obvious that a servant necessarily assumes the risk of using it, must depend, in some eases, not merely upon the simple character of the instrument itself, and the openness of the defects in it, but also upon the situation and condition of the servant himself, his opportunity and capacity for discovering that condition, and the circumstances calculated to withdraw his attention from it; and the test in doubtful cases is the judgment of a jury upon the question whether or not persons of ordinary prudence, similarly situated, would have discovered the risk.

Upon this, as well as upon the question as to the defendant’s negligence and that of contributory negligence, the evidence presented matters for the determination of the jury.

A ruling of the trial court upon exception to plaintiff’s petition, in striking out allegations as to plaintiff’s mental capacity to understand the danger which he incurred, and his reliance upon the superior ability of his foreman, was discussed in argument, and we deem it proper to say that such matters may properly be considered in connection with the defense of assumed risk and contributory negligence. ¡No allegation was made of knowledge on the part of defendant of such facts, as they were not stated as affecting the question of defendant’s negligence, but were relied on merely as circumstances influencing the decision of the other issues named.

For that purpose they were legitimate. In Marsh v. Chickering, 101 N. Y., 399, it is said: “In considering the application of the rule just stated, due regard must be had to the limited knowledge of the employe as to the machinery and structure on which he is employed, and to his capacity and intelligence, and to the fact that the servant has the right to rely upon the master to protect him from danger and injury and in selecting the agent from which it may rise.” Many other authorities, the results of which are believed to be correctly stated in Labatt’s Master and Servant, sec. 402a, are to the same effect.

In support of the decision of the Court of Civil Appeals, great reliance is placed upon the decision of this court in the Larkin case, supra; but it does not, as we have indicated, reach the questions of fact arising from the evidence before us.

It was held in that case that a master is not required to inspect simple tools and appliances which he furnishes to his servants, as he is required to inspect more complicated and dangerous instrumentalities with which the servant is brought in contact; but it was not held there that the mere simplicity of the tool would exempt the master from all care in every situation in which he might require the servant to use it. Neither that, nor any other well-considered case, goes to such a length. Larkin was hurt by the breaking of the globe of a lantern while he was cleaning it.

There was nothing to indicate negligence on the part of the railroad company except the omission to inspect the lantern, and as it was in Larkin’s custody, to be used and kept in proper condition by him, it was held that no duty of inspection existed, with reference to him, at least, to ascertain matters which he could learn as well as any inspector.

And we do not hold that the duty of general inspection was upon the defendant in this case with reference to tools like that in question, but merely that it is a question of fact whether or not the defendant furnished to plaintiff this hook under circumstances showing a want of ordinary care- for his safety, and whether or not plaintiff knew, or ought to have known, its condition and assumed the risk, or was guilty of negligence in using it as he did. In the cases of Gulf, W. T. & P. R. Co. v. Smith, 83 S. W., 719; Houston & T. C. R. R. Co. v. Scott, 62 S.

W., 1077, and many others that could be cited, it appeared that the plaintiff either actually knew of the condition of the implement of which he complained, or that he had such opportunities of knowing as to conclusively show that he ought to have known. Each case necessarily depends on its own facts when the question is whether or not there is evidence to go to the jury, and a decision of the question upon one state of facts is usually of little help in a different case.

For the reasons given, we are of the opinion that the Court of Civil Appeals erred in rendering final judgment, and that part of its judgment is reversed and the cause remanded. Reversed and remanded.