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

• Decision Date: 10 March 1902
• Citation: 67 S.W. 446
• Parties: GULF, C. & S. F. RY. CO. v. DARBY.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

67 S.W. 446

GULF, C. & S. F. RY. CO. v. DARBY.¹

Court of Civil Appeals of Texas.

March 10, 1902.

Appeal from district court, Harris county; Wm. H. Wilson, Judge.

Action by Clyde L. Darby against the Gulf, Colorado & Santa Fé Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. W. Terry and Chas. K. Lee, for appellant. Lovejoy, Sampson & Malevinsky, for appellee.

GARRETT, C. J.

On October 6, 1899, the appellee was injured while in the employ of the appellant as a switchman in its yards at Temple by coming in contact with the roof of a building projecting dangerously near the line of the railroad. His crew had been sent to the storeroom track to take out a caboose. It was 7 p. m., and dark; the men had lighted their lamps. The caboose was coupled onto the train, and the appellee mounted it by a ladder on the side, and started to the brake to unlock it, walking with his back to the direction in which the cars were moving, when he was struck by the projecting roof of an oil house between which and the cupola of the caboose he was caught and injured. He sustained damages to the amount of the judgment. His injuries were caused without fault on his part, and were the result of negligence on the part of the appellant in having the structure dangerously near the railroad track and in failing to warn him of the danger. When the appellee was employed he signed an application for the position of switchman upon a form furnished him by the appellant, in which he answered a number of questions in writing, and, among others, the following: "(32) Do you understand that at some points on this line there are platforms, sheds, roofs, water tank frames, telegraph poles, bridges, scales, cars, and other side obstructions and trolley wires of street railways, which may be dangerous, and that you must inform yourself of the location of such obstructions and use due care to avoid injury thereby? Answer: Yes." The appellant, as master, was required to exercise ordinary care to keep its track in a reasonably safe condition, and this care and condition extended to permanent structures; and, while the appellee, when he entered the service of the appellant, assumed all the risks necessarily incident to the employment, he did not assume those that were the result of the master's negligence, unless the same were obvious, or he had knowledge thereof, or by the exercise of ordinary care might have known of them. He owed no duty to inspect, and did not absolutely assume the risk of such structures as had been negligently placed dangerously near the track, though they were permanent in character, and were already erected when he entered the service. Shearm. & R. Neg. § 201. But the appellant seeks to avoid liability in this case on account of an express contract by the appellee to advise himself of all obstructions in and about the place where he might be called on to work which might be a source of danger or injury. The paragraph of the application above set out is undoubtedly an attempt on the part of the appellant to limit its liability by a contract whereby it undertook to devest itself of its duty to exercise care in providing a reasonably safe track and to warn the appellee of the proximity of all structures which by its negligence had been placed so near the track as to endanger the life and limb of the appellee, and to devolve upon him the duty of inspection and assumption of the risk. It is very generally held that such a contract is against public policy. The rule is stated in Greenh. Pub. Pol. p. 528, as follows: "A contract whereby an employé relieves his employer from responsibility for the latter's negligence, or that of his other employés when he is responsible for their negligence, is void." Judge Cooley in his work on Torts, concluding his discussion of contracts against liability for negligence, says: "But although the reasons which forbid such contracts have special force in the business of carrying persons and goods, and of sending messages, they apply universally, and should be held to defeat all contracts by which a party undertakes to put another at the mercy of his own faulty conduct." Cooley, Torts, 687. Bailey, Mast. Liab. Serv. p. 477, recognizes a conflict of authority upon the question, but it seems to be well settled by the great weight of authority that such contracts will not be upheld, on account of public policy. Authorities supra; also 20 Am. & Eng. Enc. Law (2d Ed.) pp. 154, 155, and note 2; Bonner v. Beam, 80 Tex. 155, 15 S. W. 798; Railway Co. v. Wood (Tex. Civ. App.) 35 S. W. 880; Railroad Co. v. Jones, 92 Ala. 218, 9 South. 276; Railway Co. v. Orr, 91 Ala. 548, 8 South. 360; Johnson v. Railroad Co., 86 Va. 975, 11 S. E. 829; Spangler v. Railway Co., 44 Ohio St. 471, 8 N. E. 467, 58 Am. Rep. 833; 1 Shearm. & R. Neg. § 241d. It must be observed that the contract is not for relief from the negligence of fellow servants, nor to evade the fellow servants law (Rev. St. art. 4560g), but on account of duties owed by the master itself. Wharton says, "No agreement that a party shall be held irresponsible for his negligence * * * is valid." Whart Neg. § 199. The decisions most in point to the contrary are from the supreme court of Massachusetts. Shearman & Redfield characterize the ruling of the Massachusetts courts as "intolerable." Section 177. Railway Co. v. Voight, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560, cited in appellant's brief, may, we think, be distinguished. At any rate, the decided weight of authority is as above stated, and the rule seems to be recognized in this state. Bonner v. Beam, supra.

For the reasons given, appellant's first, second, third, and fourth assignments of error are not well taken, and it may be stated in this connection that there was no error in the refusal of the court to give the instruction to the jury set out in the sixteenth assignment, all of these assignments being predicated upon the validity of the contract requiring the appellee to take upon himself the duty of inspection and to assume the risk of all obstructions; and the instruction given by the court in the general charge, which is assigned as error by the nineteenth assignment, being upon the general duty of the appellant and the appellee, and ignoring the contract, was correct.

The fifth,...