
    The Missouri Pacific R. R. Co. v. Joseph T. Lyde.
    (Case No. 1279.)
    1. Test of diligence required of railroad.— The test of diligence adopted by the supreme court required of railroad companies in furnishing and maintaining proper cars, machinery, etc., is that of ordinary care.
    2. Same.— It was error to charge that the railroad company is bound to protect its servants from injury by reason of latent or unseen defects, so far as human care and foresight can accomplish the result.
    3. Practice — Charge of court.— In a suit for damages for personal injury, no testimony was produced from which with any certainty the jury could estimate the amount of a medical bill; it was error to incorporate it in the charge upon the measure of damages.
    4. Damages •—Poverty of plaintiff.—Whatever may be the rule in cases of slander and of breach of promise of marriage, yet in a suit for damages for personal injury against a railroad company, brought by the party himself, although the plaintiff may show the nature of his business and the value of his services in conducting it as grounds for estimating damages, yet his wealth or poverty is an immaterial issue.
    5. Same.— Special exceptions to an allegation of poverty of plaintiff in the petition in such suit should be sustained.
    Appeal from Anderson. Tried below before the Hon. Peyton F. Edwards.
    The facts sufficiently appear in the opinion.
    
      Greenwood & Gooch, for appellant.
    I. A master operating railroad machinery is under obligation to use only ordinary and reasonable care to keep it in repair, or to discover latent defects therein, but is not bound to use the highest possible degree of care, and it was error to so charge in this case. Railway Co. v. Dunham, 49 Tex., 185; Railway Co. v. Doyle, id., 191; G., H. & S. A. R. R. Co. v. Delahunty, 53 Tex., 209; Cooley on Torts, 557; Boone’s Law of Corporations, sec. 267.
    II. The court erred in charging the jury to consider “ the expense of medical attendance,” in estimating damages in this case, in the absence of proof of any .liability paid or incurred by appellee, or the value of that rendered. Bailey v. Mills, 27 Tex., 506; Blanchet v. Davis, 3 Tex., 142; Harris v. Finberg, 46 Tex., 85.
    III. Where plaintiff below alleged that he, plaintiff, “ is poor and without means with which to engage in trade or commerce,” in a suit for damages, and as a ground for recovery, it is error to refuse to strike the language out, when excepted to. The above stated allegation was in the petition of plaintiff below. The defendant below filed a special exception and moved to strike out the allegation. The exception was* overruled by the court, and it was excepted to. Wright v. Wright, 6 Tex., 3-16; K. P. R. R. Co. v. Pointer, 12 Am. Law Reg., p. 630.
    IY. A railroad corporation operating machinery is under obligation, to use only ordinary care to keep it in repair; and when this duty is performed, it is not responsible for injuries to servants inflicted by reason of defects therein, of which neither it nor its managers had notice; and as the evidence in this case shows that the appellant had used ordinary care to detect defects in the cars which injured appellee, and no apparent defects were discovered before the injury, it was error to refuse a new trial asked for on the ground that the verdict ivas not supported by the evidence, and was contrary to the law and evidence. Railway Co. v. Dunham, 49 Tex., 185; Railway Co. v. Doyle, id., 191; Railway Co. v. Delahunty, 53 Tex., 209; Cooley on Torts, 557; Boone’s Law of Corporations, sec. 267; Faulkner v. Erie Railway Co., 49 Barb. (7th Am. Law Reg., p. 510); Shearman & Redfield on Negligence, secs. 93 and 99; Field’s Law of Damages, note to sec. 186.
    
      Gammage & Gregg, for appellee.
    I. The charge of the court to the jury is full and complete, and fully sustained by the "law, and indeed goes further in favor of the defendant company than the law authorizes, and the defendant cannot be heard to complain. ' See authorities quoted by appellant. Railway Co. v. Dunham, 49 Tex., 185; G., H. & S. A. R. R. Co. v. Delahunty, 53 Tex., 209; Cooley on Torts, 557; also 550, 551; 1 Redfield, 517.
    
      II. The supreme court will not reverse a cause by reason of error in the charge, unless it appears to be a material error, to the prejudice of the party complaining; and when it is manifest from the whole charge, taken together, that a particular isolated sentence operated no injury, the supreme court will not reverse the judgment. T. & P. R. W. Co. v. Murphey, 46 Tex., 368; G., H. & S. A. R. R. Co. v. Delahunty, 53 Tex., 212, and authorities cited therein; R. D. Loper et al. v. Jas. Robinson, 54 Tex., 510; T. & P. R. W. Co. v. Chapman, Texas Law Rep., Vol. I, No. 4, for August, 1882, p. 305; H. & G. N. R. R. Co. v. Randall, 50 Tex., 260.
    III. There was no proof offered or introduced to prove the allegation in regard to plaintiff being “ poor and without means with which to engage in trade or commerce,” and by an inspection of the record it will be found that it was only preliminary to the balance of the allegation in the petition, and was immaterial.
    IY. A railroad company is liable to an employee injured by the negligence of a superior fellow-servant whose directions he was bound to obey; a master is liable for an injury sustained by his servant by reason of defective appliances (bumpers or draw-heads) put in his hands by himself or his agents, unless he shows that he has been diligent and circumspect in the employment of such agents and in the selection and preservation of such appliances; or that the servant knew of the defect and continued to use the appliances without notifying the master of the defect; or that the servant was himself guilty of contributory negligence in such case. Cowles v. Richmond & Danville R. R. Co., 84 N. C., 309. In above quoted case, the plaintiff was injured by reason of defective “ draw-heads or bumpers,” as in the case at bar. See, also, Hough v. R. R. Co., 100 U. S., 213; Gibson v. Pacific R. W. Co., 46 Mo., 163. Employers are held to the fullest measure of duty, and must furnish employees with safe appliances,, etc. Wood’s Master & Servant, §§ 418-428; Pierce on Railways, 370; Brabbitts v. N. W. R. R., 38 Wis., 289; 77 Ill., 365.
   Bonner, Associate Justice.

The first error assigned is that “ The court erred in its charge to the jury in this: The jury were told in the charge that defendant is bound to protect his servants from injury by reason of latent or unseen defects, so far as human care and foresight can accomplish the result; and erred in refusing the first charge requested by the defendant, for the reason that this measure of duty is greater and more stringent as between master and servant than that prescribed by law, and that requested in said first charge, viz., ordinary care.”

That portion of the charge objected to reads as follows: “ A master is bound to the exercise of reasonable care in reference to all the appliances of the business, and is bound to protect his servants from injury therefrom by reason of latent or unseen defects, so far as human care and foresight can accomplish that result; but he does not stand in the relation of an insurer to the servant against injury, and can only be held chargeable when negligence can be properly imputed to him.”

This will be considered in connection with the seventh assigned error, that “ The verdict of the jury was contrary to and against the evidence in this: The evidence established that the defect complained of was not known to the defendant, nor to its managers, nor even to any of its servants; that proper and careful precautions and regulations were existing and used to discover defects (and repair them) by frequent inspections and examinations by competent servants; that the machinery complained of was of the usual and proper kind, and properly constructed and apparently sound; that if any defect existed it was not known before the very moment of the injury ; and therefore there was no evidence to show that the defendant or its managers knew or. ought to have known of the alleged defect, and that there was negligence in not repairing or not knowing of the same.”

The testimony of the plaintiff himself shows that he had been acting in the capacity of brakeman on that particular train for ten days; that he looked at the dead-woods and draw-heads before attempting to make the coupling, and that there was no apparent defect. It was further in testimony that upon a careful examination, a few minutes after the accident, it was found that the coupling had been made by the plaintiff, that the link and pin were perfect and the draw-heads in good order, and that nothing was found out of place, broken or defective; also that there were then inspectors of cars at Mineóla, Palestine, Houston, Bound Eock, and at the western terminus. That it was their duty to inspect every car coming in and going out of these stations, and report the defects, etc. The cars which hurt Lyde were not reported as out of order before or after the accident. That draw-heads do not recede more than one and one-half inches, whether the spring is in good or bad order, as that is all the space between the coils. The precautions used for discovering defects were regarded as ample, and the men employed responsible.

There was testimony tending to prove that the accident did not, in fact, happen by reason of any defect in the draw-heads, etc., as alleged, but by reason of contributory negligence on the part of the plaintiff in making the coupling from the inside instead of the outside of the curve of the switch upon which the cars had been placed, by which he was thrown between the projecting ends of the two cars, which came nearer together on the inside than on the outside of the curve.

The test of diligence applied by the court below in that part of the charge complained of, viz.: that the company should protect its servants from injury by reason of latent or unseen defects, “ so far as human care and foresight can accomplish the result,” is greater than the law requires in such cases.

The general doctrine on this subject is thus succinctly stated by Mr. Pierce: 11 The company, like any master, is under an obligation to its servants to use reasonable care to provide and maintain a safe road-bed, and suitable machinery, engines, cars, and other appointments of the railroad, and is liable to them for injuries resulting from defects which it knew, or ought to have known, and could have prevented by the exercise of such care; and it is under the same duty and liability to maintain these instrumentalities in proper condition. The servant assumes the natural risks of his employment, but not those which the wrongful act of the employer has superadded. But if the company exercises reasonable or ordinary care in making and continuing such provision for the safety of employees, it is not liable to them for injuries resulting from defects in the road or machinery. It does not warrant the completeness of either, and is not responsible for latent defects, except so far as they are discoverable on proper inspection.” Pierce on Bailroads, 370, citing numerous authorities in the notes.

The test of diligence adopted by this court required of railroad companies in furnishing and maintaining proper cars, etc., is that of ordinary care. Railroad Co. v. Oram, 49 Tex., 341.

This error in the charge was sought to be cured by the special charge asked, in which ordinary care was made the test. This charge was given with the qualification that ordinary care as therein stated was that degree of care more fully defined in the general charge.

In other portions of. the general charge, and in regard to certain duties of the company, ordinary care is made the test of liability on the part of the company, but it does not appear whether the qualification made in the special charge referred to that or to the more stringent test laid down in that portion of the charge above quoted, and which related more particularly to the duty of the company in providing suitable machinery and appliances. If intended to refer to the latter, it was error; if to the former, it was not done so plainly but that the jury might have mistaken the application.

In our opinion, the first and seventh assigned errors were well taken and require the reversal of the judgment.

The third assigned error is: “ That the court erred in the charge to the jury in this: the main charge gave one measure of damages and an erroneous one, and afterwards at defendant’s instance gave another and more limited measure, and both were given to the jury without any note in writing showing by which the jury were to be governed.”

This error related to that clause in the general charge in which • the jury were authorized to allow, in estimating the damages, the expense of medical attention, and which clause was omitted in the special charge asked and given.

There was no evidence by which the jury could with any certainty estimate this as an item of damages, and they should not have been instructed so to do. This was probably an oversight in the learned judge below, and it does not appear that his attention was called to it otherwise than in a negative way, by the mere omission of the clause in the special charge asked and given.

The fifth assigned error relates to the judgment of the court overruling the defendant’s exceptions to that portion of the plaintiff’s pleadings in "which it was alleged that he was a poor man and without means with which to engage in commerce.”

Whatever may be the rule in cases of slander and breach of promise of marriage, yet in this character of case, where the suit is by the party himself for injuries received, although the plaintiff may show the nature of his business and the value of his services in conducting it, as a ground for estimating damages, yet his wealth or poverty is an immaterial issue, calculated to unduly influence the verdict, in regard to which evidence was not admissible; and the special exception should have been sustained. As has been well said, if the wealth of the plaintiff may be shown to increase damages, the correlative of the proposition should also be accepted, and the defendant allowed to mitigate his damage by showing his poverty. Field on Damages, § 120; id., § 609, citing authorities in notes; Hunt v. R. R. Co., 26 Iowa, 363; Guengerech v. Smith, 34 Iowa, 348; K. P. R. W. Co. v. Painter, 10 Kans., reported in 12 Am. Law Reg., 64.

There are other alleged errors, but as the case will be remanded it is not deemed necessary to refer to them

Beversed and remanded.

[Opinion delivered October 17, 1882.]  