The appellant, J. A. Pope, sued the appellee railway company for damages resulting from a personal injury. Pope was an employs of the railway company, and belonged to what was called the “scrap gang,” working in the yards at Tyler. It was a part of his duty to “strip” iron. This was done by means of a chisel held by one man and struck with a sledge, or maul, by another. Upon the occasion in question Pope was wielding the sledge, and an employs by the name of Mattox was holding the chisel. A piece from the head of the chisel flew off and struck Pope in the eye, entirely destroying the sight of that member. The negligence complained of and relied on as the basis of the action was the furnishing of an unsafe tool with which to work. The ease was tried before a jury, and a verdict returned in favor of the railway company.
There is but one assignment of error, and that complains of the giving of the following charge: “You are charged that, although you may believe from the evidence that there were no reasonably safe chisels in the tool box at the time plaintiff selected the chisel that he was working with when injured, yet if you believe that plaintiff could have procured a reasonably safe chisel at the blacksmith shop of his own accord, or could have procured a reasonably safe chisel from the storeroom on the requisition of the foreman, and that plaintiff knew or by the exercise of ordinary care in the performance of his work must have necessarily known that he could have procured such chisel at the blacksmith shop or from the storeroom as hereinbefore stated, then it will be your duty to return a verdict for the defendant in this ease.” The facts show that the chisels and other tools used by Pope and his fellow workmen were kept in a large box in the yards of the company at that place. According to the testimony of Pope, he was working under a foreman named Roderick, whose duty kept him moving from place to place in the yards superintending the work there going on. Pope and Mattox were directed by Roderick at noon on the day of the injury to “strip” iron that evening. It appears that they had not been engaged in that particular line of employment during the morning. After dinner they both went to the tool box. Mat-tox got the maul, or sledge, and Pope the chisel that was used, and from which the piece flew off that injured his eye. There were probably two dozen or more chisels in the box. They were kept in no partlchlar place in the box, but were thrown in with a variety of other tools and implements used by the scrap gang. Pope looked at several of the chisels, and picked out this one because he thought it a safe one and the best of the lot. He says: “I thought it was safe to work with the track chisel with which I was hurt. I thought that the chisel I had selected to work with was perfectly safe for me to work with. I had been working there 11 months, using track chisels 11 months. I did not anticipate and could not see, and did not know, that the use of that track chisel was at all liable to hurt me, and I took it and used it for that reason. I don’t know where Mr. Roderick was when I got the chisel. I did not ask Mr. Roderick to give me a better chisel. I went to the box to get the chisel where they were kept.” On being asked if he did not know that Roderick was the njan to whom he should apply for a new chisel if needed, he answered: “I knew Roderick was the man to apply to. I knew that, if I applied to Roderick, he would give me an order and I could go to the blacksmith shop, or to the storeroom, and get a new chisel. We never failed to get anything we sent after. I made no requisition on Roderick for a new chisel there. *1067Roderick was not there at all when I selected tills chisel on that occasion.” Roderick testified, and he is not' contradicted, that, when he wanted the men to strip iron, he would just tell them to go ahead, and strip iron, and the men got their own tools. The track chisels were kept in the tool hox. When they get in bad shape, they ought to he taken to the shop for repairs. If a track chisel got in bad shape, it was thrown aside for a new one. If there was not any in the box, the men could go to the blacksmith shop and get one. They did not have to get a requisition from him to get a chisel from the shop. When they wanted to get a new one from the storeroom, it was necessary to get a requisition, and he would issue one for them. All of the men knew that they could get chisels at the blacksmith shop when they needed them. There was other testimony strongly corroborating the statements made by Roderick. Assuming that the chisel used by the appellant was a defective and unsafe tool, still the case does not come within the rule announced in Drake v. Railway Co., 99 Tex. 240, 89 S. W. 407, cited by the appellant. In that case the court held that the master might be charged with liability for injuries resulting from the use of a defective simple tool when it had been placed in the hands of the servant and he was given no opportunity to examine it for himself, and no choice of selecting another and better one. Here the tool was simple, and the defect, if any, was as obvious to the servant as to any other person. He says himself that he examined it, and that in his judgment it was safe for the use to which it was to be applied. It is also shown by evidence which is not disputed that Pope had the time to examine the chisel, and the opportunity to get another and better one if he wished, by applying to Roderick for a requisition on the stock in the storeroom, where new chisels were kept, or by going to the blacksmith shop, which was only about 200 yards distant from the tool box, and there getting one which had been repaired. Under the evidence, we do not think any other verdict should have been returned, and it is immaterial whether the charge complained of was erroneous or not. We think the judgment.should be affirmed.