Haywood v. Galveston, H. & S. A. Ry. Co.

• Decision Date: 25 January 1905
• Parties: HAYWOOD v. GALVESTON, H. & S. A. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

85 S.W. 433

HAYWOOD v. GALVESTON, H. & S. A. RY. CO.^*

Court of Civil Appeals of Texas,

January 25, 1905.

On Rehearing, March 8, 1905.

Error from District Court, Bexar County; A. W. Seeligson, Judge.

Action by Grant Haywood against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

James Routledge, for plaintiff in error. Newton & Ward and Baker, Botts, Parker & Garwood, for defendant in error.

FLY, J.

Plaintiff in error instituted this suit to recover damages of defendant in error, alleged to have arisen from personal injuries received through the negligence of defendant. A trial by jury resulted in a verdict and judgment for defendant in error.

Plaintiff in error was an employé of defendant in error, and was engaged with three other men in unloading timber for engines or tenders from a flat car, and carrying it to the carpenter shop of defendant. They carried the timber on their shoulders, the distance being about 200 yards. The timber was mixed, and ranged from pieces 9 inches by 9 square and 9 to 9½ feet long, to pieces 12 inches by 12 square and 9 to 9½ feet long. The longest stick was 9½ feet long, and the 12 inches by 12 was the largest and heaviest timber. The piece of timber with which plaintiff claimed to have been hurt weighed from 250 to 300 pounds. There is evidence that sustains the conclusion that it was perfectly safe for four men to carry that piece of timber, as well as the conclusion that plaintiff was not injured by carrying the timber as claimed by him. He was experienced in the kind of labor in which he was engaged. According to the statement of plaintiff in error and his three companions, after they had carried the smaller timbers they arrived at the conclusion that the larger pieces were too heavy for four men to carry, and plaintiff so stated to the foreman, who ordered them to go ahead with the pieces of timber, and stated that they could carry it with ease, and that if anything happened he would stand the consequences. They then took hold of the piece of timber, and, in attempting to carry it, plaintiff was hurt. The foreman stated that he knew nothing of the conversation, and plaintiff did not complain of being hurt.

The court charged the jury as follows:

"(1) You are instructed that if you believe from the evidence that the foreman of defendant instructed plaintiff and three other employés to pick up and carry a piece of lumber, and that plaintiff complained to said foreman that the same was too heavy and large for himself and the other employés to carry it with safety, and that the foreman of defendant ordered plaintiff and the other three employés to pick it up and carry it, and stated to plaintiff that they could carry it easily enough, that it was perfectly safe for them to carry it, or that he would stand the consequences, and that plaintiff was inexperienced and relied upon said statements of said foreman, if any, and that said piece of lumber was too heavy for said four employés to carry it with reasonable safety, and that while plaintiff and the other three employés were carrying the same, and by reason of the weight of the same being too great, one of the men `gave down,' and that an extra weight was thereby thrown upon plaintiff, and that by reason thereof plaintiff was injured, substantially as alleged in his petition, and that the foreman of defendant was guilty of negligence in ordering said plaintiff and the other three employés to carry said piece of lumber under the facts and circumstances of this case, or that said foreman failed to provide a sufficient number of men to carry said piece of lumber with reasonable safety, and that such failure, if any, constituted negligence, and that said negligence, if any, was the proximate cause of the injury to plaintiff, then you should find your verdict for plaintiff, unless you find from the evidence that plaintiff had assumed the risk, as hereinafter set forth.

"(2) If you believe from the evidence that plaintiff was an old and experienced hand in the particular business of carrying said lumber, and that the danger, if any, in carrying the same, was as equally open to the observation and knowledge of plaintiff as it was to the foreman of defendant, then plaintiff assumed the risk, and your verdict should be for defendant.

"(3) In this connection you are, however, instructed that if you believe from the evidence that the plaintiff complained to the defendant that said piece of lumber was too heavy for himself and the other three employés to carry, and that the foreman of defendant stated to him that said four men could carry it easily enough, or that said four men could carry it safely, or stated that he, the said foreman, would stand the consequences, that the said plaintiff was entitled to rely upon the supposed better knowledge and statements of his employer, and that said plaintiff did not assume the risk and danger incident to the carrying of said piece of lumber, unless you believe from the evidence that the danger or risk, if any, was so patent or obvious that an ordinarily prudent person would have declined to have helped to carry said piece of lumber under the facts and circumstances of this case."

The first two paragraphs of the charge are attacked on the ground that the question of the experience or inexperience of plaintiff was not an issue in the case, but that defendant in error would be liable, no matter how experienced plaintiff may have been, if the foreman ordered him to do the work, and assured him that he and his co-employés could easily do it, and that he, the foreman, would stand the consequences. The authorities offered fail to sustain the proposition of defendant in error, and no authority has come to the knowledge of this court that supports the proposition. The experience or inexperience of the servant acting under orders was the vital point in the case. If plaintiff in error was experienced in lifting timber or other heavy objects, he was in a position to understand the danger as well as the master, and it is the general rule that an employé, who knowing and appreciating the danger, enters upon a perilous work, even though he does so unwillingly and by order of his superior officer, assumes the risk of injury, and cannot recover damages therefor. Ferren v. Railway (Mass.) 9 N. E. 608; Kean v. Rolling Mills (Mich.) 33 N. W. 395, 11 Am. St. Rep. 492; Roul v. Railway (Ga.) 11 S. E. 558; Worlds v. Railroad (Ga.) 25 S. E. 646.

In the case of Railway v. Lemon, 83 Tex. 143, 18 S. W. 331, the plaintiff had been injured in assisting three others to remove a hand car from the track, under the orders of his foreman, and it was held: "If it were true, and he knew that four men were not sufficient to remove the hand car from the track to prevent a collision with a train, or if the fact was open to common observation, and he could have known it by the use of ordinary care, he assumed the risk as incident to his employment, and cannot recover." It was proved in that case that plaintiff was experienced in the work undertaken by him. In this case plaintiff not only was experienced, but no doubt can be entertained that he knew that the piece of timber was too heavy for the four men to carry, for they discussed it, and he told the foreman that it was too heavy. Knowing that the log was too heavy, he could not recover, even though he had been inexperienced, for experience could have done no more than apprise him of the weight of the log, and any man would know the danger of lifting anything too heavy for his strength. Jones v. Railway (Tex. Civ. App.) 31 S. W. 706; Hightower v. Gray, 83 S. W. 254, 11 Tex. Ct. Rep. 392; Traction Co. v. Rodriguez (Tex. Civ. App.) 77 S. W. 420.

The question as to the...