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

• Decision Date: 23 October 1891
• Citation: 17 S.W. 511
• Parties: GULF, C. & S. F. RY. CO. v. WELLS.
• Court: Texas Supreme Court

17 S.W. 511

GULF, C. & S. F. RY. CO. v. WELLS.

Supreme Court of Texas.

October 23, 1891.

On rehearing.

STAYTON, C. J.

Appellee brought this action to recover damages from appellant on account of injuries claimed to have been received by him while in the employment of appellant through a defect in the wheel of a hand-car he was operating. The defenses were: (1) That the railway company was not negligent in furnishing the car in question; (2) that if the car was defective, that was known to plaintiff long before the injury occurred; (3) that he contributed to the injury by leaping from the car at the time he was hurt. At the last Austin term the report of the commission of appeals recommending the affirmance of the judgment was adopted and the judgment affirmed, (16 S. W. Rep. 1025,) and the case is now before us on motion for rehearing. A re-examination of the case induces us to believe that the court below committed such error in a part of the charge given as requires a reversal of the judgment, and the motion for rehearing will be granted. The part of the charge referred to is as follows: "A duty imposed by law upon a railway corporation is to do everything that can reasonably be done for the safety of their employes, and to furnish safe machinery for the use of said employes, and a failure to do so will render the corporation liable for any damage done its employes by reason of such defective machinery, unless the employe is injured after he has discovered the defects in said machinery, and by his negligence has contributed to said injury. When a person engages in a particular employment he is presumed to do so with a knowledge of, and with the intent to take, all the risks incident to said employment. If the jury believe from the evidence that the plaintiff was, as alleged in his petition, an employe of the defendant, and that at the time he was injured, if he was injured, he was performing his duty as such employe, and that in the discharge of said duty he was using a handcar furnished by defendant for said purpose, and that said hand-car had a defective wheel, and further, that said defective wheel was the cause of the injury to plaintiff, if any, and you further find plaintiff was injured, and that he did not contribute to his injury, then you will find for plaintiff." The declaration that the law imposed upon appellant the duty "to do everything that can reasonably be done for the safety of its employes" may be deemed only as an...