Houston & Great N. R.R. Co. v. Randall

• Decision Date: 01 January 1878
• Parties: THE HOUSTON AND GREAT NORTHERN RAILROAD CO. v. FRANK T. RANDALL.
• Court: Texas Supreme Court

50 Tex. 254

THE HOUSTON AND GREAT NORTHERN RAILROAD CO.

v.FRANK T. RANDALL.

Supreme Court of Texas.

1878.

APPEAL from Smith. Tried below before the Hon. M. H. Bonner.

Frank T. Randall, July 3, 1874, sued the Houston and Great Northern Railroad Co. for damages. The case is stated in the charge to the jury, extracts from which are given:

“The plaintiff sues defendant for damages for alleged injuries to him while an employé, as brakeman, on the railroad of defendant, caused by the cars of the company running over his arm and requiring the same to be amputated.

The plaintiff alleges the injuries to have been occasioned by a certain open ditch left by the negligence of defendant on a side track of their road, into which he stepped while attempting, as brakeman, to couple the cars of defendant, by reason of which he fell to the ground, and said cars ran over his arm; and that said injury was occasioned without the fault, negligence, or want of care of the plaintiff.

The defendant denies the allegations of the plaintiff, specially denying that it was negligence to leave said open ditch as the same was left, and that said injury was occasioned by the contributory negligence of the plaintiff.”

* * * “Under these issues, the burden of proof is on the plaintiff; and to entitle him to recover, he must have shown to your satisfaction that he has been injured substantially as alleged, and that the same was caused by reason of the negligence of the defendant. If this has been shown to your satisfaction, the burden of proof then shifts upon the company; and it devolves upon the defendant to show that it is not liable for damage by reason of the contributory negligence of the plaintiff, as hereinafter charged.

The defendant, as a railroad company, has no means to act except through its agents; and the act or negligence of a superintending agent or officer is, in law, the act or negligence of the company itself. It was the duty of the company to have used ordinary and reasonable care and diligence in furnishing a road-bed, with proper facilities for drainage, constructed according to the principles governing the proper construction of such railroads, so as to accomplish the ordinary purposes of said road, and also reasonably provide against such dangers as may be usually foreseen. If the defendant used such care and diligence in furnishing a road-bed on that part of the road where the alleged injury occurred, then, in law, it would not have been guilty of such negligence as would make it liable to the plaintiff, as its employé, for damages for negligence in the construction of its road.

It was the duty of the plaintiff, as brakeman in the service of the defendant, to have acquainted himself with the general duties of the position; and he assumed at his peril the risks and dangers naturally and usually incident to his employment as such brakeman, including the risk and dangers of such defects, if any, as were reasonably open to his ordinary inspection, under the circumstances. And if the testimony shows that the plaintiff knew of said open ditch, and failed to notify the defendant of the danger of the same, but, without objection or protest, continued in the service of the defendant, the law would presume that he assumed the risk incident to the same, and he could not recover a verdict.

If the testimony shows that the defendant, under the rules above laid down, was not guilty of negligence in the construction of its road-bed, then, under the issues in this case, the alleged injuries to the plaintiff, so far as the defendant is concerned, would have been occasioned by one of those accidents incident to all human works, which would not render the company liable, and you should find for defendant.

If, however, the plaintiff has shown to your satisfaction that the defendant failed to use such ordinary and reasonable care and diligence in the construction of said road-bed as is required under the charge above given; that the injury complained of was occasioned as the direct or proximate cooperating result thereof, and that the same happened without the fault or contributory negligence of the plaintiff, as hereinafter charged, this, in law, would be such negligence on the part of defendant as would render the company liable, and you should find for the plaintiff.

Whether leaving an open ditch on the side track of the railroad, if shown by the evidence, was, under the circumstances as shown, negligence or not, is for you to determine, under the law in this charge, from all the evidence on this point.” * * *

“If there be negligence on the part of defendant, ‘then whether the company should be exempt from liability by reason of contributory negligence of the plaintiff, is also a question for your determination, under the evidence, as applied to the law of contributory negligence.’ * * *

Negligence, in a general sense, is every omission to perform a duty imposed by law for the protection of one's own person or property, or that of another. Negligence, to some extent, should be measured by the character, risk, and exposure of the business under consideration; and the degree of care of all parties is higher when the lives and limbs of themselves or others are endangered than in ordinary cases.

Ordinary negligence is the want of such care and diligence as reasonably prudent men generally, in regard to the subject-matter of inquiry, under such circumstances as those under consideration, would use to endeavor to prevent the injury complained of.

Contributory negligence is negligence not only upon the part of the one committing the injury, but also upon the part of him upon whom the injury is committed, and by which they both contribute thereto.

One who is injured by the ordinary negligence of another cannot recover damages therefor, if the injured party by his own ordinary negligence or willful wrong, proximately contributed to the injury, so that it would not have happened but for his own fault. If the party injured by his own carelessness substantially contributed to the injury, or might, by the exercise of ordinary care, such as prudent men generally would have used under similar circumstances, have avoided the injury, he cannot recover damages.

The law required of the plaintiff, as brakeman, for his own self-protection, the use of such ordinary care in the performance of the duties of his position as prudent men under similar circumstances would employ; and if the testimony shows that the defendant in the first instance was guilty of negligence, in the want of the use of due and reasonable diligence, as before stated, in the construction of its road-bed, and in leaving an open ditch in the side of the same, by means of which the plaintiff was thrown in such position, in his attempt to couple the cars of the defendant, as to have had his arm injured; and if the testimony further shows that the plaintiff, by his own ordinary negligence, in not using such means and precautions as were proper and usual with prudent brakemen generally under similar circumstances, the plaintiff contributed to his own injury, so that the same would not have happened but for this mutual contributory or coöperative negligence of both, then the plaintiff would not be entitled to a verdict.

Whether the plaintiff was guilty of such contributory negligence in this case, it is the duty of the jury to determine from the evidence; and in this connection you should look to the testimony in regard to the duty of brakemen generally,--the precautions they should take for their own safety; whether the plaintiff performed these duties and adopted the precautions; whether the plaintiff knew of the danger from the ditch, and, without notice to the defendant and objection thereto, continued in the service of the defendant, and thereby was presumed to assume the risk of the danger. On this point you should look to the evidence, if any, of the actual knowledge in regard to said ditch, or that which he might have had by the use of such reasonable means of inquiry and observation at his command, of which ordinarily prudent brakemen generally, situated as he was, would have availed themselves.”

The remainder of the charge was on the measure of damages.

The jury found for plaintiff and assessed the damages at $12,000, for which judgment was rendered.

Motion for new trial was overruled, and the defendant appealed.

Jones & Henry, for appellant, cited Union Pacific R. R. Co. v. Milliken, 8 Kan., 647;Chicago and N. W. R. R. Co. v. Jackson, 55 Ill., 492;Illinois Central R. R. Co. v. Welch, 52 Ill., 183;Greenleaf v. Illinois Central R. R. Co., ...