G., H. & S. A. R'Y Co. v. Lempe

• Decision Date: 23 February 1883
• Docket Number: Case No. 1420.
• Citation: 59 Tex. 19
• Parties: G., H. & S. A. R'Y CO. v. JOSEPH LEMPE.
• Court: Texas Supreme Court

59 Tex. 19

G., H. & S. A. R'Y CO.

v.JOSEPH LEMPE.

Case No. 1420.

Supreme Court of Texas.

Feb. 23, 1883.

APPEAL from Colorado. Tried below before the Hon. Everett Lewis.

The opinion states the facts.

E. P. Hill, for appellant.

Foard & Thompson, for appellee, cited Tarrant v. Webb, 18 C. B., 797; Farwell v. Boston, etc., R. R. Co., 4 Metc. (Mass.), 473; Hard v. Vt. & Canada R. R. Co., 32 Vt., 473;Moss v. Pacific R. R. Co., 49 Mo., 167; Ryan v. Cumberland, etc., R. R. Co., 26 Pa. St., 384; Wright v. N. Y. C. R. R. Co., 25 N. Y., 562; Warner v. R. R. Co., 39 N. Y., 340; Wigmore v. Jay, 5 Exch., 354; Hutchinson v. Railway Co., 5 Exch., 343; Wonder v. Railway Co., 32 Md., 411; Patterson v. Pittsburg R. R. Co., 76 Pa. St., 389; Gibson v. R. R. Co., 60 N. Y., 607;Laning v. R. R. Co., 49 N. Y., 521; Flike v. R. R. Co., 49 N. Y., 549;Keegan v. Western R. R. Co., 8 N. Y., 175;Connolly v. Poillon, 41 Barb. (N. Y.), 366; Clayards v. Dethick, 17 Q. B., 439; Greenleaf v. R. R. Co., 29 Iowa, 14; Clark v. Holmes, 7 H. & N., 942; Couch v. Steel, 3 E. & B., 402; Kroy v. Chicago R. R. Co., 32 Iowa; Ford v. Fitchburg R. R. Co., 110 Mass., 240; Patterson v. R. R. Co., 76 Pa. St., 389.

WILLIE, CHIEF JUSTICE.

Lempe was an employee of the appellant, whose duty it was to work in the ““bridge gang.” After being engaged in bridge work for twenty days, he, together with the remainder of the gang and their foreman, went to New Philadelphia to fix a well. He had never worked on a well before, and worked on this one by order of his foreman. This well was one used by the railroad company to get water for its engines. It had been out of repair for a month or more and the curbing had begun to fall in. Lumps of dirt fell in every day, and about three feet from the surface the well had caved, leaving the surface dirt overhanging and the curbing had begun to fall in. It had been raining considerably about the time Lempe went to work there, and the ground was saturated with water, and the earth was caving in at intervals all the time. This caving could have been prevented by digging away the overhanging dirt. The well was fifteen or twenty feet square when curbed, and, according to one witness, ten, and to another, twenty feet deep.

After appellant had been at work on the well for about three days, and whilst he was on the outside of the curbing, spiking a plank to its place, a fall of dirt from the top of the well occurred, which, striking him, broke his upper jaw in one place, his lower jaw in two places, and tore three of his ribs loose from the backbone. During the three days that appellee worked in the well the overhanging dirt was constantly falling, and he and his co-laborers dug it up and removed it as fast as it caved. In the opinion of witnesses examined on the trial, the well was dangerous for a month or more before the work commenced, and that means could have been devised to prevent the overhanging dirt from falling.

Lempe brought this suit against the railroad company to recover damages for the injuries thus received and obtained a judgment for $3,000. A motion for new trial made by appellant having been overruled, an appeal was taken to this court. At the last Galveston term the judgment below was affirmed, but on application of appellant's counsel a rehearing was granted, and the cause now comes before us for a re-examination.

The errors assigned are that the court refused, on request of defendants below, to charge the jury to find in its favor, and in overruling the motion for a new trial, in which it was urged that the verdict and judgment were contrary to the law and the evidence.

The appellee claims that he was entitled to a verdict on the following grounds:

1. Because the accident was the result of his obeying the orders of the company and engaging temporarily in a work different from that in which he was ordinarily employed.

2. Because appellant knew of the dangerous character of the work and did not take any precaution to prevent an injury to appellee.

3. Because appellee's knowledge of the risk does not prevent his recovery, the injury occurring from an involuntary act, or one done by express command of appellant.

4. Because appellee had a right to rely upon the care and superior knowledge of appellant in protecting him from injury.

5. Because the danger not being so apparent that appellee as a prudent man had cause to apprehend injurious consequences, he was not guilty of contributory negligence.

6. Because the question of appellee's knowledge of the danger was properly left to the jury, and they having determined that and all other facts in the cause, their finding should not be disturbed.

As to the first of these grounds, it is sufficient to say that the proof does not show that working upon a well of the company was not a part of the ordinary employment of the bridge gang. We do not think this circumstance in itself sufficient to authorize the inference. It may have been a part of the duties of these very laborers to repair the wells of the company; or they may have been persons employed to work generally for the corporation, and were called the ““bridge gang,” by the witness, because engaged at the time in working upon one of its bridges. The true character of their duties should have been shown and not left to conjecture; but no evidence was offered on the subject. Divested of all proof as to the appellant having been forced to engage in work different from that which he had been employed to perform, the only question left in the case is as to the master's liability for injuries to his servant, received whilst voluntarily engaged in a dangerous work under orders of the master, the servant having equal means with the master of knowing the extent of the danger. We state the question in this way because the facts of the case show that Lempe was just as well aware of the perilous character of the business in which he was engaged as was his employer; and the propositions made by appellees embrace an implied, if not an express, admission to this effect. The danger to appellant arose from the unsafe condition of the well, caused by the fact that a portion of the curbing had given away, and the ground, some few feet from the top of the well, had caved in, leaving the overhanging earth without any support. The injury received was from the fall of this unsupported earth upon the appellant, who was working beneath it. The means of knowing the danger was afforded him by the situation in which he was placed whilst at work with the threatening matter above him, and in his view all the time. He was acquainted with the laws of gravitation, and knew that a heavy body unsupported by adequate props was liable to fall at any time. He also knew that the frequent rains had loosened the dirt and rendered it still more liable to cave in. He was made still more aware of these perils from having worked three days in the well, and seen large quantities of earth and other substances actually fall around him. He was a man twenty-seven years of age, and, for aught that appears, of ordinary capacity and judgment. It is true that he had never before engaged in working in a well, but it required no skill in well-digging to know that a heavy body without adequate support would fall, or that earth saturated with water was less liable to cohere than when dry and hardened; that the circumstances which had actually caused the dirt to fall once would likely produce the same effect at another time;...