
    LIQUID CARBONIC CO. v. DILLEY.
    (No. 2496.)
    (Supreme Court of Texas.
    April 10, 1918.)
    1. Master and Servant i&wkey;291(13) — Instructions — Proximate Cause.
    Charge in a servant’s action, that if he was directed to clean a high-pressure coil, and in the exercise of ordinary care attempted to do so, and while so engaged a solution tank used in connection with the work exploded, injuring him, and said explosion occurred because defendant failed to exercise ordinary care in furnishing a reasonably safe and sufficient tank for the purpose, or because defendant failed to exercise ordinary care in seeing that the coil was reasonably free from gas and in a reasonably safe condition to be cleaned, and that a man of ordinary prudence, under the circumstances, would have acted as plaintiff did, then in either of such cases verdict should be for him is not misleading because not in terms requiring a finding that the acts of negligence were “proximate cause” of the injury.
    2. Master and Servant <&wkey;287(8) — Unsafe Appliances —Duty of Inspection — Vice Principal — Instruction.
    The evidence in a servant’s action for injury from explosion of a solution tank while cleaning a high-pressure coil connected therewith, at most raising merely a question of fact as to whether he, though acting in the engineer’s place, was a vice principal as respects inspecting or testing the tank, defendant was not entitled to direction of verdict on the mere finding that plaintiff was in the engineer’s place.
    3. Trial <&wkey;252(ll) — Instructions—Applicability to Evidence.
    Requested instruction, in servant’s action for injury from explosion of a solution tank while he was cleaning a high-pressure coil connected therewith, that defendant could not be guilty of negligence, in respect to exercising care to see that the coil was reasonably safe for use by plaintiff at the time, if plaintiff was acting in the engineer’s place, unless the engineer had stated to him that all the gas and pressure had been blown out of the coil, was properly refused; there being evidence of other facts which would warrant a finding of actionable negligence, even if such statement had not been made.
    4. Master and Servant t&wkey;278(16) — Injury —Negligence.
    . The facts which might be found' on the evidence in a servant’s action for injury from explosion of a solution tank, while he was cleaning a high-pressure coil connected therewith, that a high-pressure coil had not been cleaned, at defendant’s factory, by means of connection with a charged tank, containing a solution, till the day before the accident, and that plaintiff was not present, and did not know how the work should be done, or-that defendant, acting by the engineer, with full knowledge of the necessity to have the gas blown out of the coil, before connection with the tank, directed plaintiff to go ahead and wash out tjje coil, and assured him that everything was ready to wash it, and that thereon plaintiff proceeded to connect the coil with the tank, causing the explosion, would warrant a finding of actionable negligence, in not seeing that the coil was in reasonably safe condition for use, though the engineer had not told plaintiff that all the gas and pressure had been blown out of the coil.
    Error to Court of Civil Appeals, Fifth Supreme Judicial District.
    Action by M. L. Dilley against the Liquid Carbonic Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (150 S. W. 468), and defendant brings error.
    Affirmed.
    Harry P. Lawther, of Dallas, for plaintiff in error. Charles F. Olint and Jed C. Adams, both of Dallas, for defendant in error.
   GREENWOOD, J.

This was a suit brought by defendant in error, M. L. Dilley, to recover of his employer, the Liquid Carbonic Company, plaintiff in error, damages for personal injuries, which resulted in the amputation of one of defendant in error’s legs and in the impairment of his sight in one eye. A jury trial resulted in a verdict and judgment against plaintiff in error for $8,300, which was affirmed by the Court of Civil Appeals.

Defendant in error was engaged in cleaning a high-pressure coil, in obedience to the orders of one Ed Hogan, engineer in plaintiff in error’s factory, and had just connected the coil with a certain charged tank, when an explosion occurred, which caused the injury.

The seventh paragraph of the court’s charge shows two distinct grounds, on which the jury were authorized to find that the plaintiff in error was negligent, and reads as follows:

“If you believe from the evidence that on or about August 12, .1910, plaintiff was in the employ of the defendant, and was directed by Ed Hogan to wash and cleanse a certain high-pressure coil in its factory, and that in the exercise of ordinary care he attempted to wash out and cleanse said coil, and while so engaged a certain solution tank used in connection with said work exploded and that he was thereby injured, as set forth in his first amended original petition, and that said explosion occurred ■because the defendant failed to exercise ordinary care in furnishing a reasonably sufficient, safe, and sound solution tank for said purpose, or because the defendant failed to exercise ordinary care in seeing that the high-pressure coil No. 1, to which said tank was connected at the time of its explosion, was reasonably free from gas and in reasonably safe condition to be cleansed, and that a man of ordinary prudence, under the same or similar circumstances, would have acted as plaintiff did, then, in. either of such events, you will find for the plaintiff and award him such damages as under the evidence he may be entitled to.”

The only complaint with respect to the above paragraph of the charge is that it authorized a finding against plaintiff in error, regardless of whether the specified acts of negligence were the “proximate cause” of the injury. On the facts, we do not believe the charge could have misled the jury. C., R. I. & P. Ry. Co. v. Reames, 63 Tex. Civ. App. 29, 132 S. W. 978. At the same time we do not regard with favor departure from the approved form of submitting the question of proximate cause in negligence cases.

The writ of error was granted with special reference to the assignment of error on the refusal of plaintiff in error’s special charge No. 7, which reads:

“If you find from the evidence that the plaintiff, Dilley, at the time of the injury was assistant engineer of the defendant, and that in the absence of the engineer, Hogan, he took Hogan’s place, and if you further find from the evidence that at the time of the injury and prior thereto, while plaintiff was preparing to cleanse the coil, Hogan was absent and the plaintiff, by virtue of being assistant engineer, was in Hogan’s place, you are then instructed that, unless you find from the evidence that Hogan, before he left, told the plaintiff that all the gas and pressure had been blown out of the high-pressure coil, and unless you further find that in the exercise of ordinary care plaintiff relied upon said statement and acted thereon, you will find for the defendant.”

Careful consideration leads us to conclude that the charge requested was properly refused. As applied to the act of negligence on the part of the employer, in failing to exercise ordinary care to furnish a reasonably safe solution tank, for the use which its employé, the defendant in error, was expected to make of it, the charge is plainly erroneous, unless we can find from the record, as a matter of law, that defendant in error, when acting in Hogan’s place and in his absence, became charged with the duty of the master with respect to furnishing or inspecting or testing the solution tank. The record does not warrant such a finding from uncontradicted facts. The evidence is undisputed that plaintiff in error, acting through Engineer Hogan, directed defendant in error to use the very tank which the jury were authorized to find was dangerous for such use.

The general manager of plaintiff in error’s factory testified that the tank belonged to the company, and, so far as he could see, was in good shape, and the only way to determine what pressure it would stand was by a test, and that such a tank might stand 1000 pounds pressure. The tank seems never to have been tested and did not withstand 750 pounds pressure.

We find no direct evidence that either Hogan or his assistant was required or expected to examine or test the tank, except that defendant in error testified:

“I didn’t test it. I don’t know anything about those tanks. I didn’t work in that capacity, and had no business to test them. 1 had other things to look after.”

According to plaintiff in error’s general manager, the assistant engineer was supposed to take the place of a “machinist in ordinary factories.”

At most, the evidence raised merely a question of fact as to whether defendant in error, though qcting in the engineer’s place, was a vice principal as respects inspecting or testing the solution tank. Hence it would have been error to direct a verdict, on that issue, on the mere finding that defendant in error was in the engineer’s place. Nicholds v. Crystal Plate-Glass Co. (Mo.) 27 S. W. 519 (3); Id., 126 Mo. 55, 28 S. W. 999; Sanders v. H. & T. C. R. Co. (Tex. Civ. App.) 93 S. W. 139; 3 Labatt’s Master and Servant, § 899.

Nor do we think the requested charge was free from error as applied to the negligence alleged by reason of the failure of defendant in error to exercise proper care to see that the high-pressure coil was reasonably safe for use by defendant in error at the very time of his injury. The charge instructs the jury that plaintiff in error could not be guilty of negligence in this respect if defendant in error was acting in the place of the engineer, unless the latter stated to him “that all the gas and pressure had been blown out of the high-pressure coil.” The only witness who testified that the engineer made the quoted statement was the defendant in error. The jury might have found that no such statement was made, and yet have found, on other testimony: First, that a high-pressure coil had not been cleaned, at this factory, by means of connection with a charged tank, containing a solution, until the day preceding defendant in error’s injury, and that defendant in error was not then present, and had no knowledge of how the work should be done; second, that plaintiff in error, acting by Engineer Hogan, with full knowledge of the necessity to have the gas blown out of the high-pressure coil, before connecting same with the solution tank, directed defendant in error to go ahead and wash out the coil, and assured him that everything was ready to wash same out, and that thereupon defendant in error proceeded to connect the coil with the solution tank, causing the explosion. Such facts would certainly warrant the finding of actionable negligence, and yet might all be present, though the jury did not believe that the engineer expressly assured defendant in error that all the gas and pressure had been blown out of the coil.

The remaining assignments present no reversible error, and the judgments of the Court of Civil Appeals and district court are affirmed. 
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