Appellee, a locomotive engineer in the employ of appellant, was seriously injured by the explosion of the firebox and boiler of an engine he was operating on the line of appellant's railway, near the town of Curry, on January 7, 1907, and brings this action to recover damages for the injury thereby sustained. His petition contains allegations of many and various acts of negligence, but since the trial court only submitted two issues of negligence set up by him, we think it only necessary to state these. The first was whether or not the firebox which collapsed and caused the injuries was improperly constructed in any of the respects alleged by plaintiff, and, second, whether or not the appellant negligently permitted the firebox to become out of repair, defective and dangerous and unfit for use, thereby causing the explosion.
Defendant replied by general demurrer, special exceptions, general denial and a plea of contributory negligence, wherein it asserted that said engine at the time of the accident was in thorough repair and in all respects a well-equipped and substantial piece of machinery, well suited to do all the work required of it, and that it was the duty of the plaintiff, by reason of his employment, to carefully operate the same, but that plaintiff failed so to do in the following respects, to wit: That he negligently permitted the water in the boiler to get below the crown sheet, whereby the boiler became overheated, by reason of which it was caused to explode. Second, that while the boiler was thus overheated he negligently turned water into *Page 379 it, thereby causing the explosion, for which reasons he was precluded from recovery.
There was a jury trial which resulted in a verdict and judgment for the plaintiff from which appellant has prosecuted this appeal, urging many reasons for a reversal of the judgment. Amongst others the appellant insists, by its 22nd assignment of error, that the jury were erroneously instructed in the 10th paragraph of the court's charge, which is as follows, viz.:
"If the jury find from a preponderance of the evidence in this case that the plaintiff allowed the water in the boiler of said engine to get below the crown sheet of the said engine, and that by reason thereof the crown sheet of said engine became heated to a high temperature, and that while said engine and parts thereof were in the said condition plaintiff turned water into the boiler of said engine upon the overheated metal (if it was overheated) composing the crown sheet, the radial stays and stay bolts and other parts thereof, as alleged by defendant, and the jury further find from a preponderance of the evidence that the turning of the water (if it was turned) into the said boiler of the engine caused said firebox to explode or collapse and thereby caused and contributed to producing the injuries of which he complains in this suit, and the jury further find from a preponderance of the evidence that an ordinarily careful and prudent person, under the same or similar circumstances, would not have turned water into the boiler of the said engine while it was in an overheated condition (if it was in such condition) then the jury will find for the defendant, even though they may find from a preponderance of the evidence that the defendant, its agents and employees, were guilty of negligence in regard to said engine, and that such negligence (if any) may have also contributed to plaintiff's injuries."
By its proposition thereunder it is insisted that said charge is erroneous, confusing and misleading because it, in effect, instructs the jury that if the plaintiff caused his injuries by turning water into the boiler of the engine after having allowed the boiler to become overheated, and if an ordinarily careful and prudent person, under the same or similar circumstances, would not have turned water into the boiler of said engine upon the overheated metal composing the crown sheet, etc., to return a verdict for the defendant. Whereas, the correct rule of law relating to the matter is that if plaintiff caused said explosion by his own acts in particulars enumerated in said paragraph of the charge, the defendant was necessarily guiltless of the character of negligence with which it was charged, and was for that reason alone entitled to a verdict, independent of any issue as to whether or not the plaintiff in so acting was guilty of negligence; and the charge, in failing to so state and in inferentially stating that negligence on the part of the plaintiff was a fact necessary to be established in said connection, was erroneous and confusing to the jury and prejudicial to the rights of the defendant.
The contention of appellant, in effect, is that if plaintiff allowed the water in the boiler to get below the crown sheet and then in its overheated condition, turned the water on it, he would thereby be *Page 380 guilty of such negligence as to preclude his recovery, and that, too, irrespective of whether the jury should believe that a man of ordinary prudence would have done so or not.
There is evidence in the record to the effect that the engine when turned over to the plaintiff on the morning of the accident was complete in all its parts and in good working order, and that the plaintiff, during the time that he was operating the engine, had allowed the water to get below the crown sheet, whereby the same was heated to a higher degree of temperature, becoming overheated and red hot, and that immediately before the accident, while the same was in this condition, the plaintiff, by use of the injector, turned water into the boiler which caused the explosion from which he sustained the injuries set out in his petition. This being true, and the defendant having pleaded that the plaintiff was guilty of contributory negligence by reason of these facts, it became the duty of the court to submit a proper charge upon this phase of the case. In response to this duty the above charge, which is complained of, was given.
The question for consideration is whether the charge as given was proper, or whether the same imposed a greater burden upon the defendant than the law, under the facts, permitted. If the engineer allowed the water in the boiler of said engine to get below the crown sheet of the engine, and by reason thereof the crown sheet became heated to a high temperature, and while the engine and parts thereof were in such condition, he turned water into the boiler of the engine upon the overheated metal composing the crown sheet and other parts of the engine, then if the jury found from a preponderance of the evidence that the turning of the water into the boiler of the engine caused the same to explode, and thereby caused and contributed to produce the injuries of which he complained, it seems to us that this would be sufficient, within and of itself, to preclude his recovery, irrespective of whether or not an ordinarily careful and prudent person, under the same or similar circumstances, would have turned the water into the boiler. If the word "allowed" used in the charge is to be taken and considered in its usual and ordinary signification, then it must be regarded that the plaintiff, by allowing the water to get below the crown sheet, whereby the engine became overheated, knew its condition; and if, with such knowledge, he should turn the water into the boiler in its then overheated condition, it seems to us that he would be bound to know, as a matter of common knowledge, that an explosion would follow under circumstances indicated by the charge; then why should it be further necessary to tell the jury that, notwithstanding the plaintiff might have been guilty of the acts recited in the charge, yet be would not be precluded from recovery unless the jury should further believe that a man of ordinary prudence, under the same or similar circumstances, would not have done as he did. We think the objection to the last clause of the charge is well taken and should be sustained.
There is a complaint on the part of appellant that the last clauses of the court's charge in both the 7th and 8th paragraphs were, if not contradictory, confusing and misleading, in that the jury were told that if they believed the defendant guilty of negligence, as set forth *Page 381 in each of said paragraphs, then it would be their duty to find for the plaintiff, unless they found for the defendant upon the issues of contributory negligence submitted to them. In other paragraphs of the charge the phases of contributory negligence, as pleaded by the defendant, were properly submitted to the jury so that there could be no conflict in the two charges. We think that the reference to the issues of contributory negligence as made by the court, under the circumstances, were and could not have been misleading, because the entire charge, when criticised, should be considered as a whole, and if this is done it is clear, it seems to us, that the jury could not have understood, as contended by appellant, that before they could find for it they must find for it on both features of contributory negligence submitted in the charge. However, in view of another trial, we suggest to the court a correction of the charge in this particular.
We have carefully examined each of the other assignments presented in the able and elaborate brief of appellant, but are constrained to believe that no reversible error is shown in any of them as insisted, and they are, therefore, overruled. But for the error pointed out, the judgment of the court below is reversed and the cause remanded.
Reversed and remanded.