Ft. Worth & Denver City Railway Co. v. Dailey

Court of Appeals of Texas

Ft. Worth & Denver City Railway Co. v. Dailey

111 S.W. 763, 50 Tex. Civ. App. 409, 1908 Tex. App. LEXIS 600

DecidedApril 25, 1908

StatusPublished

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Bluebook

Ft. Worth & Denver City Railway Co. v. Dailey, 111 S.W. 763, 50 Tex. Civ. App. 409, 1908 Tex. App. LEXIS 600 (Tex. Ct. App. 1908).

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Opinion

STEPHENS, Associate Justice.

Appellee, a brakeman in the service of appellant, was severely injured in a fall from a car, due to the breaking of a grab-iron, on account of which he recovered a verdict and judgment in the sum of eight thousand dollars, from which this appeal is prosecuted. The car with the defective grab-iron was a foreign car which had been incorporated in appellant’s train at Wichita Falls *410 without proper inspection, although appellant kept 'an inspector at that place for the purpose of inspecting such cars, and it was the rule for such cars to be inspected at that place when received by appellant for further transportation.

The first complaint made, worthy of notice, is of the following charge: “The defendant railway company is not an insurer of the safety of its cars and grab-irons, but it is its duty to exercise ordinary care to have same in a reasonably safe condition for its employes to use in the discharge of the duties required of them, and to this end it was its duty to inspect the car in question, though it may have belonged to another company, and to make such inspection thereof as an ordinarily prudent person would make under the same or similar circumstances.” And particularly, of the following clause of the charge: “and to this end it was its duty to inspect the car in question.” The first counter proposition of the appellee is that the duty of making an inspection of cars received from another road is an absolute duty, in support of-which the opinion of Justice Brown in Southern Kan. Ry. Co. v. Sage, 98 Texas, 438, as well as other cases, is cited. But, whether this is maintainable or not, we are of opinion that there is no room for a difference of opinion as to the duty of appellant in this instance to have inspected the car in question. So that, if the charge should be held to be technically erroneous, it was harmless.

The only remaining assignment complains of the sufficiency of the evidence to sustain the verdict, but we think a clear case of liability was shown. The judgment is therefore affirmed.

Affirmed.

Writ of error refused. ,

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STEPHENS, Associate Justice.

Appellee, a brakeman in the service of appellant, was severely injured in a fall from a car, due to the breaking of a grab-iron, on account of which he recovered a verdict and judgment in the sum of eight thousand dollars, from which this appeal is prosecuted. The car with the defective grab-iron was a foreign car which had been incorporated in appellant’s train at Wichita Falls *410 without proper inspection, although appellant kept 'an inspector at that place for the purpose of inspecting such cars, and it was the rule for such cars to be inspected at that place when received by appellant for further transportation.

The first complaint made, worthy of notice, is of the following charge: “The defendant railway company is not an insurer of the safety of its cars and grab-irons, but it is its duty to exercise ordinary care to have same in a reasonably safe condition for its employes to use in the discharge of the duties required of them, and to this end it was its duty to inspect the car in question, though it may have belonged to another company, and to make such inspection thereof as an ordinarily prudent person would make under the same or similar circumstances.” And particularly, of the following clause of the charge: “and to this end it was its duty to inspect the car in question.” The first counter proposition of the appellee is that the duty of making an inspection of cars received from another road is an absolute duty, in support of-which the opinion of Justice Brown in Southern Kan. Ry. Co. v. Sage, 98 Texas, 438, as well as other cases, is cited. But, whether this is maintainable or not, we are of opinion that there is no room for a difference of opinion as to the duty of appellant in this instance to have inspected the car in question. So that, if the charge should be held to be technically erroneous, it was harmless.

The only remaining assignment complains of the sufficiency of the evidence to sustain the verdict, but we think a clear case of liability was shown. The judgment is therefore affirmed.

Affirmed.

Writ of error refused. ,

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111 S.W. 763, 50 Tex. Civ. App. 409, 1908 Tex. App. LEXIS 600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ft-worth-denver-city-railway-co-v-dailey-texapp-1908.

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