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of this it was necessary to use “boiler compound,” the active ingredient of which was caustic soda. This was sometimes put into the vat in lumps and sometimes in solution previously prepared by the company and kept in quantity for the purpose.
A steam jet was used to expel from the machinery any particles of dirt, grit, or paint or other foreign substance which might remain thereon after it was taken from the vat. In using this, if the piece was smooth and round the particles would be blown away from the person using it, but if the piece was hollow or irregular in form the particles, together with such quantities of the liquid as adhered, would be blown back on the hands, face, and clothing of the person using it. Vapors arose from the boiling liquid which were necessarily inhaled by the person in charge of the work. The labor was heavy and disagreeable.
On the 18th of July, 1898, plaintiff sought employment of the defendant and was placed in charge of the vat, his duties being as above described and to use the vat for the purposes for which it was designed. He was taken to the vat and an employe told to explain his duties to him, how to use the lifting apparatus, the steam jet, how to keep the liquid up to its necessary strength, and where to get the materials for the purpose. Plaintiff worked at his task for eighteen months, when he quit on account of ill health. He knew nothing of the ingredients of caustic soda or potash, its effects on grease, paint, or metals when subjected to heat and vapor, nor did he know that the chemicals alone or their products when thus combined would prove deleterious to his health.
When he first began he used his bare hands in putting the caustic soda into the tub, but he at once discovered that it burned his hands, and thereafter he found means to cover them when handling it. He also learned that the liquid made his hands sore and consumed his finger nails, and thereafter he kept his hands oiled as a protection against that effect. In using the steam jet he discovered that the particles when they struck his fact would cause a stinging sensation, but he did not know that he was incurring any danger beyond these surface burns, or that his health was in danger either from the inhalation of the vapors or by absorption of the poison from contact therewith. The evidence of plaintiff's witnessses standing alone would have sustained a verdict that the condition of his health was due to both absorption of metallic and chemical poisons by contact, and to inhalation of the vapors and gases arising from the heated liquid. The testimony of defendant's witness tended to show that plaintiff was suffering with tuberculosis and that his ill health was in no way due to metallic poison. That the vapors from the vat contained no poison, and that contact with the liquid or the chemicals would result only in surface sores.
The physicians testifying in behalf of plaintiff stated that they could not say with certainty that any of the metallic poisons generated by the liquid except potash and lead had produced any deleterious effect upon plaintiff. That these two played the important part as evidenced by his symptoms. They agreed that the conditions had subjected him to the
influence of the other poisons also. Plaintiff's pleadings did not specify the character of metallic poison to which his injuries were alleged to be due.
Jason A. Baker, the man who employed plaintiff and put him to work, stated that they had great difficulty in getting a man for the place. That he had put from fifteen to thirty men to work at the tub prior to plaintiff's employment, and they would quit in a short time. Some of them became sick and at least one had to seek medical treatment. That he did not tell plaintiff of this because he needed a man for the place, and on that account did not warn him of the dangers of the position.
The evidence is sufficient to support the verdict that the plaintiff's injuries were due to absorption of metallic and chemical poisons, principally lead and caustic soda, and that this was brought about by actual contact with the poisons.
The evidence was sufficient to authorize the trial court to submit as an issue whether the vapors contained poison which affected plaintiff by inhalation, but whether we could approve the verdict upon this ground alone is another question. In the present attitude of the case the jury are presumed to have based their verdict upon the issue which the evidence fully sustains.
This in effect disposes of the assignments assailing the judgment on the ground that the court should have directed a verdict for defendant, and also the one complaining because the court refused to withdraw from the consideration of the jury the issue as to whether the poison could have been the result of inhaling the vapors.
It is plain that the plaintiff is not shown to have assumed the risk, for the reason that the dangers were latent and not open to the observation of one not learned in chemistry. Plaintiff was an ordinary laborer, did not apply for that particular task, claimed no special knowledge, and the testimony of Baker shows that he knew that plaintiff was not aware of the risks he was assuming, nor can we say as a matter of law that plaintiff should have learned by experience that the danger of poisoning was present. It by no means follows that surface burns and stinging sensations produced by particles of the liquid would put a man of ordinary information on notice that he was in danger of poison by absorption. That he was put to work there without warning of unusual danger was a tacit assurance by the master that no unusual danger was to be apprehended. The issues of latent danger and knowledge thereof on the part of plaintiff acquired before his injuries were properly submitted in the main charge.
What seems to be regarded as the most serious question presented on this appeal is contained in the sixth assignment, complaining of the refusal of the trial court to restrict the jury to the consideration of lead poison and caustic soda as the cause of plaintiff's injuries. As before stated, plaintiff did not allege that his injuries were due to any particular poison contained in the liquid, but averred generally that the liquid contained the several chemical and metallic poisons testified about.
It was shown that the liquid contained several kinds of metals deleterious to health and that plaintiff had been exposed alike to the action of all.
The plaintiff's physicians agree that he is suffering from metallic and chemical poisons due to his work about the vat, but can be certain of only two, viz., lead and potash. We do not think this authorized the trial court to take from the jury the consideration of the other harmful substances to which plaintiff had been exposed by the negligence of defendants. If this were true, then if the physicians had all agreed that he was suffering from metallic and chemical poison due to his work about the vat, but had confessed their inability to say definitely which of the poisons had produced the bad results, then it would have been the duty of the trial court to instruct a verdict for defendant, notwithstanding plaintiff was shown generally to have been injured by the negligence of defendant as alleged,-a proposition manifestly unsound.
The evidence on the question of liability is sufficient to support the verdict. The amount of the verdict is not complained of. For the reasons given the judgment is affirmed.
Affirmed. Writ of error refused.
Texas & PACIFIC RAILWAY COMPANY V. A. N. KENNEDY.
Decided May 27, 1902.
1.-Railway Company-Negligence of Trainmen Frightening Horse.
Where plaintiff's horse was frightened by reason of the engineer of a passing train unnecessarily opening the cylinder cocks, causing the escape of steam with loud noise, the railway company was liable for the resultant injury, and it was not necessary to plaintiff's right of recovery that the engineer should have seen his actual peril, if a reasonably prudent person would have anticipated that the opening of the cylinder cocks would frighten the horse and probably cause plaintiff to be injured. 2.-Same-Measure of Duty-Discovered Peril.
The engineer's duty was not confined to shutting off the steam after he discovered that the unnecessary opening of the cylinder cocks had in fact frightened plaintiff's horse; and the doctrine of discovered peril, which is usually applied in cases where the injured party is guilty of some contributory negligence, has no application to the facts of this case.
Appeal from Gregg. Tried below before Hon. R. B. Levy.
Duncan & Jones, for appellant.
Turner & McHaney, John B. Howard, and Young & Stinchcomb, for appellee.
PLEASANTS, ASSOCIATE JUSTICE.—This is a suit for damages for personal injuries alleged to have been caused by the negligence of the appellant. On the evening of December 26, 1899, the appellee, while
riding along a public road near the town of Hallville, in Harrison County, was thrown from his horse and received the injuries complained of. The circumstances attending the accident and appellant's connection therewith may be succinctly stated as follows:
The road along which appellee was riding is upon appellant's right of way, and at the place of the accident was about twenty-five or thirty feet from the railway track. Appellant's track is fenced and the public road is not upon the inclosed portion of the right of way. From a point one-half mile west of Hallville the road runs in a westerly direction through a lane about twenty feet wide. This land is made by the right of way fence on the south and a farm fence on the north, and is three or four hundred yards long. Just after entering this lane going west there is a slight depression in the road. Appellee had just crossed this depression going west when he heard a freight train coming from the direction in which he was riding. He saw this train when it was 300 yards distant. When the train got within 150 yards of appellee the whistle on the locomotive was blown. When appellee first heard the train he was riding along reading a letter, and anticipating that his horse might become frightened, he put the letter in his pocket and prepared to dismount. As the horse appeared to pay no attention to the train, which was in full view, and was not frightened by the whistle, but indicated a desire to go on towards the approaching train, appellee concluded he would not dismount. It was down grade from the point at which appellee first saw the train to the town of Hallville. The train was running about twelve miles an hour. When the locomotive reached a point about thirty yards from appellee the engineer opened the cylinder cocks and the steam was thrown out on both sides of the engine, making a loud and unusual noise, which greatly frightened appellee's horse and caused him to immediately begin to rear and plunge. The locomotive continued to emit steam through the cylinder cocks and to make a loud noise until it had run some distance past the appellee. Appellee's horse continued to rear and plunge until it finally fell with him and he was seriously injured. The fireman on the engine saw plaintiff before the cylinder cocks were opened and saw him when the horse took fright and began to rear and plunge, and there was nothing to prevent his being seen by the engineer before the cocks were opened, though the latter testified that he did not see him. The cocks were opened by the engineer, the lever by which they were operated being upon the engineer's side of the engine, and being exclusively under his control. These cocks could have been closed, the steam shut off, and the noise stopped in a moment's time. No effort was made to stop the escape of steam and no attention was paid to appellee by any of the train crew, and the train was not stopped. It was not necessary in the proper operation of the train at that time and place to have opened the cylinder cocks. Appellee's horse was gentle and was not frightened by the usual noises made by a railway train.
We conclude from these facts that appellee's injuries were caused by
the negligence of the employes of appellant as alleged in the petition and that the appellee was not guilty of contributory negligence.
The trial in the court below by a jury resulted in a verdict and judgment in favor of appellee for the sum of $1750.
Appellant's first, second, and third assignments of error which are presented together in his brief are as follows:
"The court erred in its general charge to the jury in omitting to charge upon one of the main and material issues made in the case; that is to say, upon discovered peril; and in failing to instruct the jury as to the respective obligations and duties of the plaintiff and the employes of defendant in case the employes of defendant discovered the peril of plaintiff, both the pleadings and the proof showing that there was no obligation nor duty devolving upon the defendant's employes from the mere fact of said employes discovering plaintiff riding along a public highway near defendant's track; but such duties and obligations began and were imposed when and after plaintiff's peril, if any, became known to defendant's employes operating the train.
“The court erred in refusing to give defendant's special charge number 2 as follows: ‘You are further charged that the law does not impose upon operatives of a railway train the duty of looking out for the safety of travelers along a highway near to and parallel with the track, and that the duty to such traveler only arises when the fright of the horse and the danger to the rider is discovered by them in time to avert the injury by resort to the means at hand; and in this case, if
you believe from the testimony that the engineer was at his place in the performance of his duties, looking out ahead, and that he did not see nor discover the peril of plaintiff at all, and that such engineer was the employe on the train who was in charge of and operating the engine and its appurtenances, including the cylinder cocks as well as the appurtenances for starting and stopping the train, then you will find for the defendant.'
“The court erred in refusing to give defendant's special charge number 5 as follows: 'You are further charged that the right of way at the point where plaintiff claims to have been hurt is that space included within the railroad fences, and that the use by the public of the roadway outside of said fences and parallel with its track imposed no duty upon the operatives of trains of looking out for the safety of travelers along such roadway.
We think none of these assignments should be sustained. The jury were in effect instructed by the charge of the court that in order to find for the plaintiff they must believe from the evidence that appellant's employes operating the engine saw plaintiff at the time they caused the engine to throw out the steam and make the noise which frightened his horse; that such noise and the emission of steam from the cylinder cocks were unusual and unnecessary in the proper operation of the engine; that said employes were guilty of negligence in so operating the engine, and that such negligence was the proximate cause