G., H. & San Antonio R'Y Co. v. Drew

• Decision Date: 20 February 1883
• Docket Number: Case No. 1575.
• Citation: 59 Tex. 10
• Court: Texas Supreme Court
• Parties: G., H. & SAN ANTONIO R'Y CO. v. C. W. DREW.

59 Tex. 10

G., H. & SAN ANTONIO R'Y CO.

v.C. W. DREW.

Case No. 1575.

Supreme Court of Texas.

Feb. 20, 1883.

APPEAL from Harris. Tried below before the Hon. James Masterson.

The opinion states the case.

E. P. Hill, for appellant, cited H. & T. C. R. W. Co. v. Fowler, 56 Tex., 460; Cooley on Torts, p. 551; Thompson on Negligence, p. 1008; Wood on Master and Servant, sec. 375; Wharton on Negligence, secs. 200, 214; Sullivan v. Bridge Co., 9 Bush, 81; Priestly v. Fowler, 3 M. & W., 1.

W. P. Hamblen, for appellee, cited Keegan v. Kavanagh, 62 Mo., 230; Conway v. The Vulcan Iron Works, 62 Mo., 35, 39; Le Claire v. First Division & C. R. Co., 20 Minn., 9, 19; Lydon v. Manion, 3 Mo. App., 601, 602; 2 Thompson on Negligence, p. 974, § 5, and cases cited in note.

STAYTON, ASSOCIATE JUSTICE.

The record shows that the appellee was engaged as fireman on a locomotive which had for some time, without a pilot or cow catcher, been used with a construction train.

On the 18th of March, 1882, the superintendent of the railway, and also the train dispatcher, directed the engine to be taken from Eagle Pass Junction, where it then was, to San Antonio, that a pilot might be put on it. The engine had been in use about ten days without a pilot, during which time the appellee was engaged with it.

Upon cross-examination the appellee testified as follows: “Previous to being sent to San Antonio, I had run on the engine day and night, but in the day time mostly; we were to go there Saturday night or the next Saturday night. We had strict orders from the master mechanic and the superintendent at the same time. We protested that it was dangerous to go at night time, and he said if we did not go he would find some one who would go. Anybody with common sense could have seen the danger. What he said meant, we had to go or he would find some one who would go.” He further stated that he understood by the language used by the superintendent that he would be discharged if he did not go with the engine to San Antonio.

The engine had left San Antonio without a pilot about ten days before it was ordered to the shop for repairs; but it does not appear that either the engineer or the plaintiff knew for what purpose the engine was ordered to San Antonio.

On the way from Eagle Pass Junction to San Antonio the engine ran against a steer and was thrown from the track and the appellee was thereby seriously injured. He stated that if there had been a pilot on the engine it would have thrown the steer from the track. The cause was tried without a jury and a judgment was rendered for the appellee for $1,200.

This case presents the single question as to whether or not a master is responsible for an injury to an employee that resulted from the use of defective machinery, of which the employee had full notice, as well as of the danger consequent upon its use, when the employee is directed to use it, and simply protests against the service and yet performs it.

There is no question in this case but that the appellee knew of the defect in the engine which he had been assisting to operate, without a pilot, in the night as well as during the day, and that he knew of the danger incident to operating the defective engine.

The general rule is, that one who enters into an employment which is attended with risk of injury, of which such employee has notice, or by reasonable care may have notice, cannot recover compensation from the master, if, by exposure to such risk, he is injured; and this rule applies to cases where injury is received from the use of defective implements or machinery of which the servant had notice. Wharton's Law of Negligence, 200, 214.

It has been held that there are exceptions to this rule; and the exception which it is claimed in this case is applicable is thus referred to by Mr. Wharton: “In this country the exception has been still further extended, and we have gone so far as to hold that a servant does not, by remaining in his master's employ, with knowledge of defects in machinery he is obliged to use, assume the risks attendant on the use of such machinery, if he has notified his employer of such defects, or protested against them, in such way as to induce a confidence that they will be remedied.” Law of Negligence, 221.

This...