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

• Decision Date: 02 January 1897
• Citation: 39 S.W. 967
• Parties: GULF, C. & S. F. RY. CO. v. WILLIAMS et al.
• Court: Texas Court of Appeals

39 S.W. 967

GULF, C. & S. F. RY. CO. v. WILLIAMS et al.

Court of Civil Appeals of Texas.

January 2, 1897.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by Frances M. Williams (née Finley) and others against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs. Defendant appeals. Reversed.

Alexander, Clark & Hall and J. W. Terry, for appellant. T. T. Vander Hoeven, W. C. Kimbrough, and Dudley G. Wooten, for appellees.

RAINEY, J.

This is the second time this case has been before this court. On the first appeal the judgment was reversed, and the cause remanded, and a report of the case will be found in 32 S. W. 51, to which reference is made for a statement of this case, as the pleadings and facts are practically the same.

There are numerous assignments of error, but it will only be necessary to discuss a few of them, the others being without merit. The first we will notice is the sixth, which complains of the court for refusing to give the following requested charge, viz.: "The undisputed evidence is that the deceased was an experienced railroad man in the capacity in which he was serving, and, as such, was chargeable with knowledge as to all the risks incident to the service that were patent and open to observation. If the deceased knew of existing rules, and the absence of other, but more suitable, rules, in engaging to perform the work under such circumstances, he assumed the risk resultant from such conditions." One contention of appellees is that the railroad company had not only provided insufficient and inadequate rules for the government of the yard and train crews, but that there was an absence of rules altogether. The evidence shows that Finley was an experienced brakeman, and, as such, he assumed the risks incident to the duties of brakeman of the train on which he was working, but did not, by reason of that employment, assume the risk incident to the negligence of the yard crew. If, however, he knew that the railroad company had failed to provide adequate rules, or provided none at all, for the protection of its employés, then he assumed the risk incident to such failure. The case of Railway Co. v. Strycharski, 6 Tex. Civ. App. 555, 26 S. W. 253, is where an employé was hurt, and claimed his injury was caused by the failure of the railway company to establish and enforce a rule for the protection of employés engaged as he was. Justice Williams, in discussing this proposition, says: "Whether or not plaintiff knew that there was no provision for a warning to him, but was required to watch for himself, is a question about which there is a conflict of evidence. If he did know it, of course, in engaging to perform the work in the absence of a regulation, he assumed the risks to result from that condition." Railway Co. v. Hall, 78 Tex. 657, 15 S. W. 108. This charge, though correct as an abstract proposition, should not have been given under the circumstances. It is not altogether correct, as the first paragraph would probably lead the jury to suppose that Finley, as brakeman of the train, assumed the risk of the negligence of the yard crew; but it was sufficient to call the attention of the court to the phase of the case as to Finley's knowledge of the insufficiency or want of rules, and the court should have charged on that phase of the case.

The thirteenth assignment of error is: "The court erred in its charge, as follows: `If you find from the evidence that the conductor in charge of the train, McDaniel, told Finley to go and get the train in the East Dallas yard, if it was ready, and you believe from the evidence it was the duty of the conductor, before ordering Finley to get the train, to first ascertain if the train was ready, and if you further find such acts, if any, of the conductor, constituted negligence on his part, then the defendant company would be liable, unless you further find that Finley, by his own negligence, contributed to the injury,'—because the same submitted an issue without any evidence to support it, and was, further, an encroachment on the province of the jury, and a charge on the weight of the evidence." The only proposition submitted under this assignment is: "It was error on the part of the trial court to submit to the jury an issue as to duties on the part of the conductor, and most material error and culpable encroachment on the province of the jury to instruct the jury that a failure of duty or...