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

• Decision Date: 18 March 1908
• Citation: 109 S.W. 478
• Court: Texas Court of Appeals
• Parties: GULF, C. & S. F. RY. CO. v. JACKSON.<SMALL><SUP>*</SUP></SMALL>

109 S.W. 478

GULF, C. & S. F. RY. CO. v. JACKSON.^*

Court of Civil Appeals of Texas.

March 18, 1908.

Rehearing Denied April 15, 1908.

Appeal from District Court, Milam County; J. C. Scott, Judge.

Action by J. M. Jackson against the Gulf, Colorado & Santa Fé Railway Company for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

J. W. Terry and A. H. Culwell, for appellant. U. S. Hearrell and Sam Little, for appellee.

RICE, J.

This suit was brought by appellee against appellant to recover damages for personal injuries alleged to have been received by him on the 31st day of March, 1906, while he was engaged as a section hand in the service of appellant. He alleged that he was called upon by his foreman and directed to unload some gravel cars, work that was unusual as well as dangerous; that he was inexperienced in such work, which fact was well known to his superior; that on said day he had assisted in unloading a few cars which were loaded with strippings, that is, with clay, gumbo, and gravel mixed; that in unloading such cars he was instructed by his superior to get upon the top of said cars, and with a line bar punch a hole through the strippings, in order to start the gravel and earth, so that it would run out and empty upon the roadbed; that after he had aided in unloading a few cars of such strippings or gravel mixed with clay and gumbo his superior in charge put him to work upon another car that was not composed of any or very little clay and gumbo, but consisted of pure gravel, the unloading of which in a similar manner to the others as directed by his superior was attended with great danger; that his superior in charge knew that this car contained gravel and not strippings or gumbo, which fact was not known to appellee; that said superior knew, or should have known, that it was dangerous to get out on the top and near the middle and attempt to unload or start to unload the same by working a way through it with the bar as the other cars were unloaded, but that, notwithstanding such knowledge, he ordered appellee to get upon said car and punch a hole through the gravel to start the same, so as to unload it; that appellee was inexperienced in such work, unacquainted with the danger attending the same, and obeyed the instructions of his superior, and that, while unloading said car as directed, the gravel gave way, precipitating him beneath the car, and partly enveloping him in said gravel, whereby he was seriously injured by the great weight and force thereof; that it was the duty of appellee's superior to warn him of such danger, and a failure so to do was negligence on the part of appellant; that if he had been warned the injury would not have happened, and the failure so to do was the proximate cause of appellee's injury. Appellant answered by general and special exceptions, general denial, pleas of assumed risk, and contributory negligence. The case was fried before a jury, resulting in a verdict and judgment in favor of appellee for the sum of $1,000, from which judgment this appeal is prosecuted.

The questions raised by the first, second, third, fourth, and fifth assignments of error may be treated together, as they practically relate to the same supposed errors committed by the court below, and by them appellant urges that the court erred in refusing to grant the defendant a new trial on the ground that plaintiff was charged with a knowledge of the ordinary laws of nature and gravitation; that the accident was purely the result of a failure to exercise ordinary care on the part of appellee, and that the law does not require the master to warn a servant as to any injury arising from and incident to such conditions as are plainly apparent to the servant at the time of the injury; that the work he was engaged in doing at the time of the accident was regular work pertaining to the business of a section hand, and the kind which he was employed to perform; that there was no increased risk or hazard pertaining to the particular work or the manner in which it was being performed at the time of the accident over the risks usually pertaining to such work; that the evidence disclosed that appellee was a man of mature years, who had been engaged in doing the work of a section hand for some 18 months, and that he knew or was in a position to know how to perform the work of unloading the gravel car as well as any other man in the service; that no particular skill was required to perform the same; that he knew at the time that he got upon the gravel car to empty the same that the bottom thereof had been removed, and that nothing sustained said gravel or prevented the same from falling through except its own cohesive force; that he knew as a man of ordinary prudence that said gravel was likely to fall through the opening made for it at any moment, and he was charged with knowing, as a man of ordinary prudence, that he was likely to fall through said opening, because there was nothing to support him upon the top of the same; that each and all of the conditions surrounding the particular work in hand were known to appellee, on account of which he assumed the risk of resulting injuries, and that in consequence thereof no duty devolved upon the section foreman, or his superior, to give him any special warning of these conditions; and that in all these respects the verdict of the jury was against the manifest weight and great preponderance of the evidence. From the record we take the material facts, which show that the appellee was engaged as a section hand by appellant at the time of the injury; that he had been at work in said employment for some 18 months prior thereto, during which time he had principally been engaged in the ordinary work of a section hand, that is, in keeping the track in repair and in good condition; that it was his duty to do anything that he was called upon to do; that he had never before this time unloaded or assisted in unloading gravel cars, and that this character of work was not ordinarily done by section hands, but by a separate crew; that at the time of his injury appellee and the other section hands were at work unloading a train of gravel cars; that the work was being done under the direction of the assistant roadmaster and R. C. Murphy, the section foreman; that Murphy was on the car at the time appellee was injured, directing the work; that said gravel cars had what are called "hopper bottoms," that is, bottoms which opened out, so that the contents thereof could be emptied upon the track; that the contents of the cars first unloaded by them on this occasion consisted of what is known as strippings or gumbo, that is, gravel mixed with clay and earth, which adhered together; that in order to unload the same the section foreman had directed the section hands to take cross-ties and strike upon the sides of the cars, and also for them to get upon the top of the cars with a line bar and punch a hole through the gravel in the center of the car, so that the contents thereof would be discharged upon the track; that he had assisted in unloading on said occasion several of said cars loaded with strippings or gumbo, composed of gravel, clay, and earth; that the car from which appellee sustained his injuries was not loaded with strippings or gumbo, but was loaded with what is known as pure or free gravel, but which fact was not known to appellee, because it had been raining upon these cars, which made the contents all look alike; that it is much more dangerous to unload a car containing pure gravel than one containing strippings or gumbo, the latter adhering and sticking together, and being more difficult to dislodge from the car than free gravel; that appellee, in obedience to the express order and direction of his superiors, the section foreman and roadmaster, and being entirely inexperienced in such work, and without knowledge of the danger incident thereto, and relying upon the supposed knowledge of his superiors, without any warning from them of any danger, got upon this last car with a line bar while the same was being unloaded, and began, as directed, to punch a hole in the middle of said gravel with said bar, whereupon suddenly and without warning to him, he was precipitated underneath the car, and partially engulfed and incased in the gravel, from which he was extricated by the other hands in some 15 or 20 minutes by digging him out; that he did not know that it was more dangerous to unload this car than the others; that if he had known it was a car of gravel instead of a car of strippings he would not have gone to the center of the car with a line bar to work, but would have remained on the side of the car and have used the handle of the bar, thereby remaining out of danger; that the foreman had known him...