Atchison, T. & S. F. Ry. Co. v. Mills

• Decision Date: 26 February 1908
• Citation: 108 S.W. 480
• Parties: ATCHISON, T. & S. F. RY. CO. v. MILLS.
• Court: Texas Court of Appeals

108 S.W. 480

ATCHISON, T. & S. F. RY. CO. v. MILLS.

Court of Civil Appeals of Texas.

February 26, 1908.

Appeal from District Court, El Paso County; J. M. Goggin, Judge.

Personal injury action by I. L. Mills against the Atchison, Topeka & Sante Fé Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. W. Terry and A. H. Culwell, for appellant. Patterson & Wallace, for appellee.

FLY, J.

This is a suit for damages arising from personal injuries alleged to have been inflicted upon appellee, through the negligence of appellant, in the territory of New Mexico, on November 14, 1906. Appellant answered by general and special exceptions, general denial, and pleas of the injuries having been inflicted through the negligence of a fellow servant, and assumed risk, and contributory negligence. The trial resulted in a verdict and judgment in favor of appellee in the sum of $5,500.

The first assignment of error brings in review the following charge, given by the court: "You are instructed that railway companies are not to be regarded as insurers of the safety of their employés, for under the law they are not insurers; and one who enters the employment of a railway company assumes all the risks that are ordinarily incident to the business, but he may assume that the railway company and its other servants and employés have exercised ordinary care to do their duty, and he does not assume the risks of any danger that may be brought about by the railway company or its other servants or employés, unless he knows of such negligence and the attendant risks, or in the ordinary discharge of his duties must necessarily have acquired the knowledge." The charge is claimed to be erroneous because it does not distinguish between the risks assumed and those not assumed, because it renders the company liable for all the danger brought about by itself, while it should be confined to such dangers as are brought about by its want of ordinary care. We think the charge intended to express the principle that the servant does not assume the risks arising from the negligence of the master, unless they are known or should be known by him; but it might have been clearer, perhaps, if well-established precedents had been followed in giving the instructions. The Supreme Court has approved a charge stating that: "By the use of the expression `a risk ordinarily incident to the employment' is meant a risk of injury that does not arise or grow out of an act of negligence on the part of the defendant or its servants, and, whenever a risk is created by an act of negligence on the part of a railroad company or its employés, this is not a risk ordinarily incident to the employment." Railway v. Kelly, 98 Tex. 123, 80 S. W. 79. No doubt but what the charge of the court was intended to convey the same ideas.

It was clearly the duty of the engineer to exercise ordinary care in preventing the engine from moving while appellee was under it discharging his duty, and the court did not err in so instructing the jury. An act of omission may constitute negligence as well as one of commission. Inactivity may, under proper circumstances, constitute the grossest character of negligence. The duty devolved upon appellant, not only to use reasonable care in furnishing safe appliances, but to use ordinary care in so using them as to prevent injury to its employés; and there is no force in the contention that appellant would be liable for a "positive act" in the handling of the locomotive, but it would not be liable "for the nonaction of the engineer." The engineer sent appellee under the engine, and, if he failed to use the means at hand to prevent the engine from moving while appellee was in his position of danger, appellant would be liable for the resultant damages. This principle is often applied in cases of persons known to be on the track or in other positions of danger.

The statement in the charge that appellant was liable if it "failed to keep the throttle of said engine in a reasonably safe condition and state of repair" conflicts with decisions of the appellate courts of this state. Railway v. McCoy, 90 Tex. 264, 38 S. W. 36; Railway v. Black (Tex. Civ. App.) 44 S. W. 673. It was the duty of appellant to exercise ordinary care "to keep the throttle of said engine in a reasonably safe condition," but the charge makes it an absolute duty to keep it in such condition.

If the accident occurred by reason of the failure of the engineer "to place the reverse lever at the center notch of the quadrant" or by reason of his failure "to open the cylinder cocks to permit the steam to escape, or both," appellant was liable, and the court properly so instructed the jury. It was not upon the weight of the evidence.

As the court gave the requested charge, the refusal of which is complained of in the sixth assignment of error, it would seem that there should be no cause of dissatisfaction on the part of appellant.

Appellant requested the court to charge the jury that under the laws of New Mexico a master is not liable for the negligence of a fellow servant, and that under those laws an engineer and fireman are fellow servants; and, if appellee was injured by the negligence of the engineer, he could not recover damages from appellant. The charge was properly refused. What the laws of New Mexico may have been was not shown by the testimony; and "it is well settled that, in the courts of this state, in the absence of pleading and proof to the contrary, the laws of another state are presumed to be the same as the laws of Texas." Bank v. Kenney, 98 Tex. 293, 83 S. W. 368. It is stated in a proposition under the assignment of error assailing the action of the court in...