Galveston, H. & S. A. R. R. Co. v. Delahunty

Gould, Associate Justice. This is a suit brought to the July term, 1875, of the district court of Harris county, by Pat. Delahunty, appellee, against the Galveston, Harrisburg & San Antonio Railway Company, appellant, for damages because of personal injuries alleged to have been sustained by him, without any fault on his part, while in the employ of appellant, resulting from the supplying to him by appellant of unsuitable and unsafe machinery or appliances to work with, to wit: a rotten or unsound rope, the unsafe or defective condition of [210] which rope he did not know, nor had he any means whatever of knowing; that appellant was guilty of gross and willful negligence in furnishing him with such insufficient appliances; that it knew of such defect, or could have known of it by the exercise of ordinary care; and from subjecting appellee to dangerous risks not incident to his employment. The leading or principal facts showing the circumstances under which the injury was received may be thus stated: On the 21st of February, 1875, Patrick Delahunty, who was in the employ of the Galveston, Harrisburg & San Antonio Railway Company as a section foreman, was, in the discharge of his duties, with the road master (Norway) and other employes, engaged in replacing upon the track a box car, which had run off the day previous. They set a couple of skids under the car, with the ends resting on the rails; then fixed a rope around the car, and using a block and fall, or tackle, with one end of the rope attached to the stump of a tree and the other to a flat car attached to an engine, which furnished the motive power, had “raised the car up gradually on the under side until it brought it on a level,” and “the upper side had beezz brought up until it just leaned over on its edge.” In this operation over one hundred feet of the rope had beezz pulled out. With the car in this position, the road master, who appears to have been directing the work, put Delahunty and others to level a place under the car for crib work, to block it up, and while doing this, the rope broke and the car came down on Delahnnty, and he was severely injured. The rope was one previously used in digging wells, and was used on this occasion by direction of the road master. There was testimony tending to show that it was worn, and not very good. It was in evidence that it was customazy in raising cars to use a derrick, but that on the defendant’s road they always used block and tackle. No evidence was introduced on behalf of defendant, and for the purposes of this opinion, it is not necessary to state the evidence further. The following is the charge as a whole: [211] “ 1. That it is the duty of an employer to provide sound material with which to do the work required of the employe, and the failure to provide such, when an injury results from supplying unsound material, renders the employer liable in damages to the employe injured. If the proof satisfy you that plaintiff was in the employ of defendant, and that defendant furnished and supplied plaintiff a rope for the work required of plaintiff, which was rotten or unsound, and if the accident was the direct result of using the rope, then find for plaintiff such actual pecuniary damages as plaintiff has established, considering the nature of the injuries received. “ 2. If the proof satisfy you that defendant furnished sound rope, or rope reasonably fit for the work it was applied to, find for defendant. Or if plaintiff had equal opportunity to ascertain the condition of soundness or unsoundness of the rope that defendant had, then plaintiff cannot recover. “ 3. Punitory damages cannot be allowed in this case, but if liable under the law and evidence, it is liable for actual compensatory damages, and in estimating damages, the loss of time and the permanent character of the injuries, if of that nature, are to be considered.” No charges were asked on behalf of defendant, nor does it otherwise appear that he in any manner called the attention of the court to the part of the charge now objected to. In his motion for new trial he complains that the charge was erroneous, but does not specify in what particular. In this court he assigns error, embracing the entire first paragraph of the charge, and complains that it is erroneous because “it puts the employer in the relation of an insurer or guarantor of the servant against injury, whereas the true and universally recognized principle is that he is bound only to exercise reasonable and ordinary care in providing materials to do the work required, and can be held liable to the servant only when negligence can be properly imputed to him in failing to exercise such care.” The corporation is certainly not liable to its employes as an [212] insurer against injuries, nor for injuries caused by defective implements, if all proper precautions were taken to see that they were reasonably safe and strong. R. R. Co. v. Doyle, 49 Tex., 198; R. R. Co. v. Dunham, 49 Tex., 181; Cooley on Torts, 557. Negligence in the corporation in the performance of its duty to its employes to furnish them safe and suitable implements, is a fact to be established. Cooley on Torts, ch. 21. But if the injury to an employe be traced to defective implements furnished by the master, it is far from clear that any further evidence of negligence is necessary, until the master makes some showing that reasonable care had been taken in their selection. Cooley on Torts, 661-4. See, also, Piggot v. Eastern Counties Railway Co., 54 Eng. Com. Law, 229. Negligence, however, is ordinarily a question of fact for the jury, and we are not prepared to say that the court did not err in its charge in withdrawing that issue from the jury. T. & P. W. W. Co. v. Murphy, 46 Tex., 356. But to require a reversal in this court because of error in the charge, it must be a material error to the prejudice of the party complaining of it. Id., 368. Where it is manifest that the erroneous charge operated no injury, as where no other conclusion than that arrived at by the jury can be legitimately deduced from the facts, this court will refuse to reverse the judgment. McLane v. Rogers, 42 Tex., 220; Mercer v. Hill, 2 Tex., 287; Lea v. Hernandez, 10 Tex., 137; Howell v. Nutt, 12 Tex., 266; Hubby v. Stokes, 22 Tex., 220; Sypert v. McGowen, 28 Tex., 635; Allbright v. Corley, 40 Tex., 112; Carter v. Eames, 44 Tex., 548; Williams v. Conger, 49 Tex., 622; Erwin v. Bowman, 51 Tex., 514. Such is the rule, although the appellant may have done all in his power at the trial to prevent the court from committing the error, and to have it corrected in that court. It would seem reasonable that a party who made no complaint of the charge at the trial, but apparently acquiesced in the law as [213] given in the charge by the court, should be required to make a stronger showing that the charge operated to his prejudice, than is required of one who objected at the right time. Hollinsworth v. Holhonsen, 17 Tex., 47. But be that as it may, our opinion is, that under the evidence the jury could have come to no other conclusion than that the injury, if it was the result of using unsound rope furnished by defendant, was caused by the negligence of defendant. The defendant introduced no evidence whatever tending to show what precautions, if any, were taken by it to secure good and safe appliances for the use of its employes. The evidence fails to point to any diligence exercised by the company in the discharge of its duty. If the jury found the injury to be the direct result of a defective rope furnished by defendant, we do not see, under the evidence, that they could have found that there was no negligence in requiring of its employes such work with such appliances. If there was error in the charge, it did not operate to appellant’s prejudice. In regard to other errors assigned, it is believed to be unnecessary to say more than that we find none justifying a reversal of the judgment. The judgment is affirmed. Affirmed. [Opinion delivered March 26, 1880.]