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

• Court: Texas Supreme Court
• Writing for the Court: Collard, J.
• Citation: Gulf, C. & S. F. Ry. Co. v. Donnelly., 8 S.W. 52, 70 Tex. 371 (Tex. 1888)
• Decision Date: 27 March 1888
• Parties: GULF, C. & S. F. RY. CO. v. DONNELLY.

8 S.W. 52

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

Supreme Court of Texas.

March 27, 1888.

Commissioners' decision. Appeal from district court, Galveston county; W. H. STEWART, Judge.

Action by John Donnelly against the Gulf, Colorado & Santa Fe Railway Company for personal injuries. Plaintiff was a section foreman in defendant's employment at the time of the injury, on February 4, 1885, and had been so employed since January 2 of the same year. He first learned of the bad condition of the section after taking charge of the work. On January 18th plaintiff called the attention of the road-master, his immediate superior, to the need of ties to repair that portion of the road near the section-house, and he promised to furnish material for necessary repairs as soon as possible. On February 1st plaintiff reported to defendant that 1,000 new ties were needed for repairs on each mile of his section. Plaintiff's evidence tended to show that there were seven or eight defective ties to the rail throughout his entire section of ten miles. Plaintiff was only furnished with seven men to make repairs, and keep the section in order, which the evidence shows was an insufficient force. February 9th the road-master brought three car-loads of ties, and was requested by plaintiff to unload them at the section-house, but they were thrown off at the end of the section, the road-master saying he did not have time to move them. At noon of February 14th the road-master told plaintiff that a great deal of material would be furnished soon. On the evening of that day, as plaintiff was returning from his work to the section-house, riding on the front of the hand car, and while the car was moving slowly, and approaching the section-house, in attempting to turn around to get hold on the brake, his foot was caught by a splinter projecting from a broken tie, which had bulged or sprung up in the middle of the road, and he was thrown from the car, and sustained the injuries complained of. Plaintiff was looking out in front of him at the time, but did not see the tie, nor had he ever noticed it before. The evidence tended to show that the ties on either side of the broken tie were defective and rotten, and that the broken tie had probably been put in stiff, so as to take the pressure off of the bad ties on either side. A heavy train had passed over the road during the day, and the weight and jar of the passing train probably caused it to bulge and splinter. The evidence further shows that plaintiff was diligent and skillful in putting in material as it was furnished him, and that he relied upon the promise of the road-master to furnish needed material as soon as possible. It appeared that the track was not unsafe for use on it of a hand-car, nor that a hand car could have caused the tie to bulge and splinter. Verdict for plaintiff, and defendant appeals, assigning as errors the following charges given and refused:

The court instructed the jury as follows: "All persons engaging themselves in any employment assume and take upon themselves the ordinary risk and danger incident to the place and duties which they have undertaken to discharge, and the employer is not a guarantor of the safety of the employe; yet where an employe receives injuries in such employment by the negligence of the employer, without negligence on the part of the employe, he is entitled to recover damages for such injury; and in such case the items to be considered in measuring the damage would be pain, and medicines, and medical bills, and lost time, and lessened ability." "If you believe, from the evidence, that the plaintiff's injuries were caused by his own negligence, then he cannot recover any damages, and then the verdict should be for the defendant. If you believe, from the evidence, that plaintiff's injuries were caused by the negligence of defendant, without any contributory negligence on the part of the plaintiff, then the plaintiff would be entitled to your verdict for damages for his injuries. But if you believe, from the evidence, that the plaintiff by his negligence contributed to his injuries, then he would not be entitled to any damages, even if the defendant were also guilty of negligence, and would require the verdict to be for the defendant." "Negligence is the absence of such care and prudence as persons of ordinary care and prudence exercise under similar circumstances. Negligence is a question of fact, to be determined by you from the evidence just as you determine any other fact." The foregoing charges are assigned as error because not applicable to the facts of the case, and tended to mislead the jury. The charge of the court continued as follows: "If you believe, from the evidence, that the plaintiff was injured by a defective tie on his section, and that it was his duty to repair the defects in that section, and to ascertain such defects, and repair them, and that he knew there were many defective ties in said section, and that he had been acting as such section boss on the section sufficiently long to have become acquainted with the dangers incident to said service in which he was engaged, then he must be held to have assumed the dangers and risks incident to his employment, and would defeat any recovery for his injuries, unless you believe, from the evidence, that the company's servant promised the plaintiff to furnish sufficient ties to repair the road, and that the defendant was guilty of negligence in furnishing the ties, and that such negligence in furnishing the ties was the cause of the plaintiff's injuries." This instruction is assigned as error, because it was a question of fact for the jury whether plaintiff was guilty of contributory negligence in continuing in the employment, knowing the dangerous condition of the track, — whether he, as a prudent man, should have continued under faith of the promise alleged to have been made to him, — and the charge withdrew from the jury the question of contributory negligence; and because the charge fails to state that plaintiff could only continue in the employment, under the faith of the promise made him, without assuming risks, for a reasonable length of time, and it was question for the jury to say what was such reasonable length of time; and because no such promises were testified to as authorized the charge. The court's charge continued: "If you believe, from the evidence, that the defendant failed to furnish ties, and that such failure was negligence, and that plaintiff's injuries were caused by such negligence, and that plaintiff by his own negligence did not contribute to his injuries, then plaintiff would be entitled to recover for his injuries. If you believe, from the evidence, that the plaintiff was riding on the front end of the hand car, with his feet hanging down near the ties, and that the putting himself in that position was an act of negligence, and contributed to his injuries, this would require the verdict to be for the defendant. You must not suffer your verdict to be influenced by bias or sympathy, but you should find your verdict...