International & Great Northern Railway Co. v. Kernan

COLLARD, Judge. Appellee, employed as a brakeman, while in the performance of his duty uncoupling cars-in appellant’s railroad yard in San Antonio, had two fingers on his right hand mashed off. The cause of the injury was a defect in the car and the coupling apparatus. Appellant, by several assignments of error arising from the refusal of the court to give special instructions asked by defendant, insists that if the injury resulted from the negligence of its car inspector in -failing to report the car in bad order for repairs, the inspector being a fellow servant of plaintiff, the company would not be liable. The rule is that a railway company is bound to furnish safe machinery and appliances for use by its employes in operating its road, and if ordinary and reasonable care is not exercised by the company to do this it would be responsible for injuries to its servants caused by such neglect. The company can not relieve itself of this duty by charging its servants with its performance. The neglect of the servant to whom the company entrusted such duties is the neglect of the master. Railway v. Farmer, 73 Texas, 85, and authorities cited; Railway v. O’Hare, 64 Texas, 600; Railway y. Bell, 75 Texas, 53. The fact that the defective car belonged to another road was immaterial. It was the duty of the company to use the same care in protecting its employes that it would have used if the car had been its own, and if the danger of the service was thereby increased to warn the brakeman. Railway v. White, 76 Texas, 103. Appellant requested the court to charge the jury that if the injury was caused by the carelessness of the engineer in backing the train the negligence would be that of a fellow servant, and defendant would not be liable. The court gave in the general charge a similar instruction embodying the same principle, and it was not necessary or proper to repeat it by giving the requested charge. The law of contributory negligence as applicable to the case was given to the jury in its general charge, which dispensed with the necessity of giving the special charge asked by the defendant on the same subject. Besides this, the charge asked could not be given be [298] cause it contained the oft repeated illegal proposition insisted on by defendant—that if the injury resulted from the negligence of the car inspector the defendant would not be liable. On this account alone the instruction could not have been given. We find no error in the trial of the case or in the judgment of the court below, and conclude it ought to be affirmed. Affirmed- • Adopted October 28, 1890.