Chicago, R. I. & G. Ry. Co. v. De Bord

• Citation: 192 S.W. 767
• Decision Date: 07 March 1917
• Docket Number: (No. 2461.)
• Parties: CHICAGO, R. I. & G. RY. CO. v. DE BORD.
• Court: Supreme Court of Texas

Page 767

192 S.W. 767

CHICAGO, R. I. & G. RY. CO. v. DE BORD.

(No. 2461.)

Supreme Court of Texas.

March 7, 1917.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by Rolla De Bord against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals (146 S. W. 667), which affirmed the judgment, and defendant brings error. Reversed and remanded.

Hiram Glass, of Austin, N. H. Lassiter and Robt. Harrison, both of Ft. Worth, and Turner & Wharton, of Amarillo, for plaintiff in error. Williams & Stedman, of Austin, and C. B. Reeder and J. B. Dooley, both of Amarillo, for defendant in error.

YANTIS, J.

The defendant in error, Rolla De Bord, recovered a judgment for personal injuries in the district court of Potter county, Tex., against the Chicago, Rock Island & Gulf Railway Company, plaintiff in error. He alleged that on December 23, 1908, he was in the employ of the plaintiff in error as a brakeman, running and working upon its freight trains operated between Amarillo, in Potter county, Tex., and Sayre, Okl., and on said date, in the town of McLean, Tex., while in the performance of his duties in the course of his employment, and while attempting to place a car of coal upon an elevated track leading to defendant's coal chutes at said place he was seriously and permanently injured by the negligence of the defendant, its agents and servants. His petition contained two specific grounds of negligence, one of which was to the effect that the plaintiff in error had erected its coal chutes at McLean, Tex., along the line of its main track, and which were designed to be used in coaling engines by emptying coal placed in said chutes directly into the coal bins upon the tenders of its engines by means of trapdoors, and that said coal chutes and track leading thereto were negligently constructed in that said track and coal bins were in such close proximity to each other that there was no room between the sides of said cars and the engines and tenders upon such tracks, and the sides of the coal bins for the safe passage between them of the body of a person riding upon the sides of such cars or tenders and engines, where it was necessary to ride and be stationed to uncouple and hold the car, in placing such car in position for being unloaded upon such coal chutes. The other specific ground of negligence alleged was that the engineer, who was operating the engine while the plaintiff was upon the side of the tender where he was ordered by the conductor to be, assisting in the work within the scope of his employment, refused to obey a stop signal which defendant in error gave, and recklessly and negligently permitted the continued movement of said car of coal and the tender and engine, so that the car was propelled and pushed much farther along the track of said coal chutes than it should have been, and beyond the proper place for stopping the same, and caused the injuries complained of. The judgment in favor of the defendant in error was affirmed by the Court of Civil Appeals, 146 S. W. 667. This court granted a writ of error on the petition of the plaintiff in error.

Complaint is made by the plaintiff in error that the jury was misdirected in paragraph 8 of the court's charge, which paragraph is as follows:

"When the plaintiff entered the employment of the defendant company as a brakeman, he assumed all the risks ordinarily incident to that particular position, and he also assumed the risks which were known to him, or that he should discover in the proper discharge of his duties as brakeman. But the plaintiff did not assume any risks or dangers caused by the negligence of the defendant. Now, therefore, if you believe from the evidence that plaintiff was injured as alleged by him, and that such injury was one that resulted directly and proximately from the risk which was ordinarily incident to the employment plaintiff was engaged in, or was a risk which was known to the plaintiff, or that he should have discovered, in the exercise of ordinary care, in the discharge of his said duties, and that the same was not caused by the negligence of the defendant, then you will find for the defendant and return your verdict accordingly."

The criticism made by the plaintiff in error is in that portion of the charge which directs the jury, "but the plaintiff did not assume any risks or dangers caused by the negligence of the defendant." The rule is too well settled to require the citation of authorities that under the common-law doctrine of assumed risk the plaintiff in a negligence suit does not assume any risks or dangers arising from the negligence of the defendant of which he has no knowledge; but it is equally well settled that at common law the plaintiff does assume the risks and dangers caused by the negligence of which he did have prior knowledge. There was evidence introduced to the effect that the plaintiff in this case had actual knowledge, long prior to the accident, of the alleged negligent construction of the coal bins and track. It follows that if the case is to be governed by the common-law doctrine of assumed risk, the charge was erroneous, for the reason that under the common-law doctrine the defendant in error did assume the risks and dangers arising from the negligence of the defendant of which he had knowledge, while the court's charge was quite to the reverse.

If the case is one to be tried under the state law the court's charge was not erroneous, for the reason that the undisputed evidence shows that the defendant in error's employer had knowledge of the defect in construction, and where this is true, under article 6645, Vernon's Sayles' Texas Civil Statutes, assumed risk is not a defense. We are of opinion that the common-law doctrine of assumed risk controls, and that the state statute on the subject should not be given effect. Under the pleadings of the defendant in error, sustained by his evidence, at the time of his injury h...