El Paso Southwestern Ry. Co. v. W.D. Foth , 101 Tex. 133 ( 1907 )

Upon all of the questions, save one, the Court of Civil Appeals reached conclusions with which we agree. (18th Texas Ct. Rep., 610.) We are of the opinion, however, that the trial court committed error in refusing the fourth special charge requested by the defendant (plaintiff in error) which was as follows:

"If you find from the evidence that at the time of plaintiff's injury, there existed among skillful and competent railroad men, charged with the duty of protecting water glasses on engines, a difference of opinion as to the safest mode of protecting such glasses, consistent with their efficient use as such, and that the defendant company in the exercise of its best judgment, selected the kind of protection that was upon the engine and around the glass at the time of plaintiff's injury, then the defendant would not be liable to the plaintiff even though the jury may conclude from the evidence that the kind of protection selected and used by the defendant was not the kind best calculated to prevent injury to the employees of defendant in case of the bursting of the water glasses, provided it used ordinary care in making the selection."

The plaintiff (defendant in error) was struck in the eye by a piece of glass thrown out by the explosion of the water glass of the engine upon which he was employed as fireman. The negligence alleged was that the glass was not properly guarded by a shield to prevent the flying of glass in the event of an explosion, such as the evidence shows frequently happened. The defendant had around its water glass one kind of shield which was extensively used and which was in its normal condition, its only defect, if there was one, being in its original construction. Other kinds of shields had been and were in use and experts differed in their opinions as to which was the best and safest. The very issue to be determined, therefore, was that correctly stated in the special instruction. The charges given by the court were such that the jury might have inferred the rule to be as laid down in that requested and refused, but this is not a sufficient answer to a request thus specifically defining to the jury the very proposition upon which the defense relied and grouping the facts by which it might be established. (Missouri, K. T. Ry. Co. v. Carter, 95 Tex. 484; Missouri, K. T. Ry. Co. v. McGlamory, 89 Tex. 638; St. Louis S.W. Ry. Co. v. Casseday, 92 Tex. 526.)

In the case first cited this court said: "The trial court committed error in the charge given under the facts of this case in failing to instruct the jury that it was the duty of the railway company to use ordinary care to provide its engines with the best approved devices for preventing the escape of sparks and fire therefrom, and the court did not err in refusing the special charges which were asked. The charge of the court presents the law applicable to a case in which the question is the character of the spark arrester required by law, but under the facts of this case the charge given failed to submit an important issue — the question of diligence in the selection of the apparatus. The testimony in this case tended to prove that each of two different kinds of spark-arresters was used by railroad companies and each was considered by experienced railroad men as better than the other, which produced a condition in which it was necessary for the railroad company to make a choice between the two. Under this state of facts, it was the duty of the railroad company to exercise ordinary care — that is, such care as a man of ordinary prudence would exercise under like circumstances to select and use the better of the two, but, having used such care as the law requires, it can not be held that a failure of judgment honestly exercised in an attempt to discharge the duty would render the company liable."

Upon the authority of the Carter case it seems to be thought that the instruction now in question was erroneous, in that it required only the exercise of ordinary care to select and provide a reasonably safe appliance, when its duty was to exercise such care to select the safest and best. But this overlooks an important difference between the two cases. The Carter case treats of the duty of railroad companies to be exercised to prevent the escape of fire from its locomotives for the protection of the property of third persons, and that duty is defined in the case cited as it is generally defined by the authorities. In the present case we have to do with the duty of master to servant, which is as stated in the requested instruction. (Galveston, H. S.A. Ry. Co. v. Garrett, 73 Tex. 265 [73 Tex. 265]; Gulf, C. S.F. Ry. Co. v. Walker, 70 Tex. 129 [70 Tex. 129].)

It is also urged that the proposition in the charge is incorrect because it makes consistency with the efficient use of the water glass an element to be considered in making a selection of a shield for it. But we think there can be no doubt of this. The water glass was used to show the condition, at any time, of the water in the boiler, so that danger of explosion of the boiler itself might be avoided. It was important that the shield around the glass should be so arranged as to allow the water to be seen easily at all times by the engineer and fireman. It would therefore be an imperfect view of the question to be considered in selecting the kind of shield to be used which would make it depend, alone, upon the consideration of danger to the servants from an explosion of the glass itself.

For the error pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.