Smith v. Buffalo Oil Co. , 41 Tex. Civ. App. 267 ( 1906 )

This is a suit by appellant to recover damages for personal injuries alleged to have been caused him by the negligence of appellee, his employer.

The defendant answered the suit by general denial and pleas of assumed risk and contributory negligence.

The trial court instructed a verdict for the defendant and rendered judgment accordingly.

The evidence shows that plaintiff sustained the injuries complained of in his petition under the following circumstances: He was employed by the defendant as a common laborer and, under the direction of his employer, was engaged in rearranging a pipe attached to the exhaust pipe of a steam engine, and while so engaged was scalded by steam which was forced through the exhaust pipe by the engine being put in motion. The engine had not been in motion for some time prior to the time plaintiff attempted to rearrange the pipe. It was concealed from his view and there was nothing to put him upon notice that it was likely to be put in operation while he was engaged in the work which he had been directed to perform.

The engine by which the hot steam was projected through the pipe and upon plaintiff's body was not owned by appellee and was not under its control, but plaintiff had no knowledge of these facts, and appellee's manager, who was directing the work in which plaintiff was engaged and who was a vice-principal, ordered him to rearrange the pipe without notifying the person operating the engine of his intention to have such work performed, and without informing plaintiff that the engine was not under appellee's control, and that no steps had been taken to prevent its being started while he was at work on the pipe.

The engineer did not know when he started his engine that plaintiff and his coemployes were engaged in rearranging the exhaust pipe or that the performance of such work was contemplated by appellee.

The testimony shows that none of the several workmen who were assisting plaintiff were injured by the escaping steam, and he might have done the work required of him without placing himself in a position where he would have come in contact with the steam from the exhaust pipe, but there is testimony to the effect that the position in which he stood at the time of his injury was the most convenient and suitable for the expeditious performance of his work.

The work in which he was engaged at the time he was injured was in the line of his employment, and required for its proper and safe performance no special skill or knowledge of any kind, and there is no evidence that he was not fully informed as to the dangers ordinarily incident to his employment, and no facts are shown which would exempt him from the operation of the rule that charges him with the assumption of the risks ordinarily incident to his employment.

We think it clear that this evidence raises the issue of negligence on the part of appellee in ordering appellant to rearrange the exhaust pipe without notifying the person in charge of the engine that such order would be given, and in failing to inform appellant that it had no control of the engine and that it might be put in motion at any time. The facts that appellee did not own the engine and that it was not situated upon its property are immaterial. Appellant had no notice of these facts, and even if he had, he had the right to assume that appellee, when it ordered him to work on the exhaust pipe, would use proper care to see that the engine was not put in motion while he was performing his work, or would warn him that the engine might be started while he was handling the pipe.

We do not think the issue of assumed risk was raised by the evidence. The failure of the master to use proper care to provide a reasonably safe place for the servant to perform his work, and to furnish him with reasonably safe appliances, is not an ordinary risk of his employment with the assumption of which the servant is charged unless he knows of such failure. (Missouri, K. T. Ry. Co. v. Hannig, 91 Tex. 350; Texas N. O. Ry. Co. v. Bingle, 91 Tex. 287; St. Louis S.W. Ry. Co. v. Smith, 63 S.W. Rep., 1064; Gulf, C. S. F. Ry. Co. v. Moore, 68 S.W. Rep., 559; Shearman Redfield on Neg. (4th ed.), vol. 1, sec. 186.)

If it be conceded that the issue of contributory negligence was raised by the evidence, it certainly can not be held that the facts shown by the testimony are such that reasonable minds could reach no other conclusion than that appellant was guilty of negligence which proximately contributed to his injury, and that issue should have been left to the determination of the jury. (Texas Pac. Ry. Co. v. Murphy, 46 Tex. 366; Bonnett v. Galveston, H. S. A. Ry. Co., 89 Tex. 72.)

There being sufficient evidence to authorize a finding that appellant's injuries were caused by the alleged negligence of the appellee and that he was not guilty of contributory negligence, it was error to instruct the jury to return a verdict for the defendant, and the judgment of the trial court is therefore reversed and the cause remanded.

Reversed and remanded.