Cox v. St. Louis & S. F. R. Co.

• Decision Date: 02 June 1920
• Docket Number: (No. 2624.)
• Citation: 222 S.W. 964
• Parties: COX v. ST. LOUIS & S. F. R. CO.
• Court: Texas Supreme Court

Page 964

222 S.W. 964

COX v. ST. LOUIS & S. F. R. CO.

(No. 2624.)

Supreme Court of Texas.

June 2, 1920.

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

Action by S. E. Cox against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff was reversed by the Court of Civil Appeals (159 S. W. 1042), and plaintiff brings error. Reversed, and judgment of the district court affirmed.

Randell & Randell and B. L. Jones, all of Sherman, for plaintiff in error.

Head, Smith, Maxey & Head, of Sherman, and Andrews, Ball & Streetman, of Houston, for defendant in error.

GREENWOOD, J.

This was a suit by plaintiff in error, Cox, to recover damages of defendant in error, St. Louis & San Francisco Railroad Company, for personal injuries.

Cox was employed by the railroad company as a trucker at Hugo, Okl. He was directed by his foreman, named Reams, to unload four bundles of paper, each weighing 110 pounds, by throwing them, with Reams' help, from the truck to the top of a pile some four feet in height, while resting the handles of the truck on the warehouse floor and while holding down the handles with one foot. Reams was authorized by the railroad company to determine the manner in which the paper should be unloaded and to direct Cox in unloading same. The paper was part of a shipment from Paris, Tex., to Hugo, Okl. Cox had started to raise the truck handles so as to dump the paper from the truck to the floor, with a view of raising it from the floor to the top of the pile, when he was stopped by the above directions from Reams. Cox said when he received his directions: "Mr. Reams, the truck will dump." Reams replied:

"They won't do anything of the kind. Back up and let them down and put your foot on the truck handle, and we will unload from the truck."

While Reams and Cox were unloading the bundles in accordance with Reams' instructions and while throwing off the second bundle, the truck handles suddenly struck Cox in the chest, causing his injuries. The handles flew up when Cox's foot released same, which was occasioned by the act of Reams in swinging his end of the bundle of paper before Cox was ready to swing his end and before it reasonably appeared to Cox that he was ready to make the swing. The acts of Reams, in the manner in which he directed the bundles to be unloaded and in too hastily swinging his end of the second bundle, were negligent; and his negligence was the proximate cause of the injuries to Cox. All of the above facts were pleaded and have support in the evidence. The charge of the trial court authorized a verdict for Cox on findings of negligence of Reams, with respect to either the manner in which he directed Cox to do the work or the manner in which he (Reams) did his part of the unloading. The trial court entered a judgment for Cox on a general verdict.

The Dallas Court of Civil Appeals reversed the trial court's judgment and rendered judgment for the railroad company on two conclusions of law, viz.: First, that Reams was a fellow servant of Cox; and, second, that Cox assumed the risk of injury from Reams' acts of negligence. 159 S. W. 1042.

Cox suffered his injuries while he was engaged in unloading freight shipped from Texas to Oklahoma. He was therefore injured while employed by the carrier in interstate commerce, and liability for his injuries is governed by the federal Employers' Liability Act. Southern Pacific Co. v. Industrial Accident Commission, 251 U. S. 259, 40 Sup. Ct. 130, 64 L. Ed. ___.

The plain words of the federal act, no less than the decisions construing it, fix liability on the carrier for injuries resulting from the negligence of any employé of the carrier, regardless of whether the negligent employé is a vice principal of the carrier or a fellow servant of the injured employé. So, the conclusion of the Court of Civil Appeals cannot be upheld denying a recovery to Cox on the ground that Reams was his fellow servant. Boldt v. Pennsylvania R. R. Co., 245 U. S. 445, 38 Sup. Ct. 139, 62 L. Ed. 385; Second Employers' Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44.

The case not coming within the class as to which the defense of assumption of risk was eliminated by the act of Congress, we must apply the common-law rules in reaching a conclusion as to how far that defense was available to the railroad company.

In behalf of the railroad company, it is urged that the negligence causing the injuries consisted in the manner in which the work was required to be done; that such manner was known to Cox; and that the dangers incident thereto were both obvious and appreciated by Cox, who was an experienced trucker. Though we eliminate from consideration the act of Reams in swinging too hurriedly his end of the bundle of paper, we cannot hold that it was conclusively shown that Cox assumed the risk of injury from the manner in which the paper was unloaded. It is true that Cox was an experienced trucker. It is true that Cox knew the manner in which he was ordered to do the work. And it is true that Cox was apprehensive of danger at the time he received Reams' order. But, after Cox had voiced his apprehension of danger, he was assured by one having the authority from the railroad company to determine and direct how the work should be done that his fears were unfounded; and he testified that, after receiving this assurance, he believed that the work could be done as directed, with safety, by the exercise of ordinary care.

An apprehension of danger, which has been removed through unfounded assurances of safety, can have no more effect in determining whether a risk has...