Gulf, C. & S. F. Ry. Co. v. Gray

• Decision Date: 26 January 1901
• Parties: GULF, C. & S. F. RY. CO. v. GRAY.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

63 S.W. 927

GULF, C. & S. F. RY. CO. v. GRAY.¹

Court of Civil Appeals of Texas.

January 26, 1901.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Action by F. B. Gray against the Gulf, Colorado & Santa Fé Railway Company. From a judgment in favor of the plaintiff, the defendant appeals. Reversed.

J. W. Terry and West, Smith & Chapman, for appellant. Wynne, McCart & Bowlin and Corden & Corden, for appellee.

CONNER, C. J.

For the purposes of this opinion, the following statement, taken from the brief of appellant, is deemed sufficient: "While appellee was on the side of an engine tank, for the purpose of placing an oil can, he was caught between the side of the moving tank and a coal bin parallel with the track. He based his right to recover on the ground that the coal bin had been permitted to bulge out from its proper position, and that the engineer was guilty of negligence in starting the engine without warning and at fast speed. The defense was general denial; that the plaintiff had long since known, or ought to have known, of the condition of the coal bin, and assumed the risk thereof; and contributory negligence in assuming an unnecessarily dangerous position. The defendant pleaded the defense of assumption of risk and of contributory negligence in separate and distinct paragraphs of its answer. There were verdict and judgment for the appellee for $10,000. Appellant's motion for a new trial, on the same grounds as are now assigned as error, was overruled. This appeal has been prosecuted in due course."

There was evidence tending to show that the "bulge" in the coal bin projected to within 4¼ to 6½ inches from the side of a passing tender or engine tank, on the side of which, while passing, it would be obviously dangerous for a person to remain,—that is, there is evidence from which the jury might have so found; that it had been permitted to remain in this condition five or six months, during which time appellee had passed it very frequently; that the engineer on the engine in question and other employés of appellant in and about the yards knew of this condition, although appellee testified that he did not. It was appellee's duty as fireman, among other things, to take from and replace, in a box attached to the side of the tender, certain oil cans containing supplies of oil with which to oil the engine. Going to and from the cab of the engine to this box, it was necessary to take one or more steps beyond the cab, upon a projection or projections along the side of the tender, and, while doing so, secure the position with one hand holding to its top. This duty was generally performed, however, at times when the engine was standing still. Appellee testified that on the occasion of the injury, while the engine was standing still, he stepped out in the manner detailed as necessary to replace an oil can, when the engineer suddenly, and without warning, started the engine along the track, passing the coal bin, and with great speed ran the intervening distance, some 50 feet, by reason of which appellee was crushed between said "bulge" and tank, and seriously injured. The testimony of the engineer and a switchman or brakeman in the cab at the time, however, tended to show that the speed of the engine was moderate, and that appellee was inside of the cab at the time the same was started, and must have gone along the side of the tender, as testified by him, between the time of the starting and the time of the injury.

The charge of the court is criticised in the assignments of error, in that it is insisted that the court misdirected the jury on the issue of assumed risk pleaded by appellant as one of its defenses. We think this criticism can be best illustrated by the following quotation from the tenth and eighth paragraphs of the court's charge: "(10b) If you believe the defendant was guilty of negligence in allowing the bulge in the coal bin testified about to remain as it was for the length of time it had, and that the plaintiff knew, or had theretofore known, of the bulge, then, while such knowledge on the part of the plaintiff would not prevent the plaintiff from recovering for an injury, if any, caused thereby, if the plaintiff was at the time in the exercise of reasonable care for his own safety, yet the fact, if it was a fact, that the plaintiff knew, or had known, of the bulge in the coal bin, may be considered by the jury, together with the other evidence, and given such weight as you believe it entitled to, if any, in determining whether the plaintiff was guilty of negligence in remaining in the defendant's service, or in doing the acts he did at the time he did, or in conducting himself as he did at the time he was injured." "(8) The plaintiff, in accepting employment from the defendant as a locomotive fireman, assumed the ordinary risks incident to the nature and character of the business in which he was engaged,—that is, the ordinary risks incident to the position as fireman upon an engine of a railway train,—and for injury due to, or the result of, such ordinary risks there can be no recovery. But in assuming such ordinary risks plaintiff did not assume the risk of danger from negligence of the defendant, and did not preclude himself from the right to recover for any injuries, if any, not the result of such ordinary risks, but due to, and resulting from, negligence, if any, on the part of the defendant railway company, but for such, if any, he could recover, unless the plaintiff was also guilty of negligence which caused or contributed to cause the injury."

It is first insisted that if appellee knew of the bulge in the coal bin, and of the danger, or might have known the same by the exercise of ordinary care, and, without promise on the part of the employer to remedy the same, continued in his employment, as a matter of law he assumed the risk incident to the defective condition named, and cannot recover for any injury resulting therefrom. While the rule has been so stated frequently in the authorities, we are not willing to apply it under the peculiar facts of this case. There was evidence tending to show that it was not customary, nor was it appellee's duty, to go along the side of the engine tank in procuring and replacing oil cans, as mentioned, while the engine was in motion. While in motion, appellee's place of duty was ordinarily within the engine cab, in which situation no danger was to be apprehended by passing alongside the defective coal bin, and under such circumstances he should not be held to have necessarily assumed a risk not arising within the scope of his duty. Wood, Mast. & S. (2d Ed.) § 327.

The next proposition submitted under the assignment made to the court's charge is that "where the defective condition complained of was open and obvious, and patent to ordinary observation, the employé was chargeable with notice thereof, and assumed the risk." This proposition is established by abundant authority. We think it apparent from the charges of the court quoted that the doctrine of assumed risk and that of contributory negligence were confused, or rather, perhaps, that the right of the master to exemption from the results of his negligence was made to depend solely upon the general law of contributory negligence. If correct in this conclusion, it follows that there was an affirmative misdirection of the jury as to the law of the case. The jury were instructed, in effect, that if appellee knew of the "bulge" (and if he did the evidence tended to show that he must have known of its dangerous proximity to the track), then such knowledge would not prevent the appellee from recovering if he was at the time in the exercise of reasonable care for his own safety, but that such knowledge might be considered, with other evidence, in determining whether appellee was guilty of contributory negligence as alleged. This view is supported by some of the authorities. Shearman & Redfield, in their work on the Law of Negligence (4th Ed., § 208 et seq.), insist that the rule is "that the exemption of masters from liability to servants, for injuries caused by defects which the servants knew or ought to have known, is founded solely upon the general law of contributory negligence, and therefore that the liability or exemption of a master in such cases must be determined by reference to that law"; giving an able review of many authorities. We think, however, by the decisions of this state, binding upon us, a distinction must be made between the doctrines of assumed risk and contributory negligence. With exception not necessary to be noticed, there are two kinds of risks that an employé is held to assume: (1) Those ordinarily arising out of the character of his employment, and not induced by negligence on the part of his employer; (2) those risks and dangers that are obvious or known to the employé. In this latter case, however careful and prudent he may be in the performance of his duties, he assumes the risk of any injury resulting from the obvious defect, even though the negligence of the employer may have been the efficient cause of the defect, situation, or danger. In these instances the law has given no right of action against the master at all. In cases of contributory negligence, however, the general right of recovery for injuries caused by the negligence of the employer is recognized, and may, in fact, be said to be comprehended within its very terms; but the contributory negligence of the injured employé is affirmative matter of defense, that may be interposed by the master to defeat the operation of the general rule, and to relieve him from the ordinary consequences of his negligence. See Railway Co. v. Bradford, 66 Tex. 732, 2 S. W. 595, quoted by the supreme court with approval in the case of Crawford v. Railway Co., 89 Tex. 89, 33 S. W. 534; Railway Co. v. Conroy, 83 Tex. 214, 18 S. W. 609; Railway Co. v. Somers, 78 Tex. 439, 14 S. W. 779; Railroad Co. v. Bingle,...