International & G. N. R. Co. v. Shaughnessy
| Decision Date | 08 June 1904 |
| Parties | INTERNATIONAL & G. N. R. CO. v. SHAUGHNESSY. |
| Court | Texas Court of Appeals |
Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
Action by William Shaughnessy against the International & Great Northern Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed on rehearing.
J. A. Read, for appellant. O. T. Holt and Lovejoy & Malevinsky, for appellee.
Plaintiff alleged that he was a switchman in appellant's yards; that, owing to the defective roadbed and track consisting of rotten ties, rails out of repair, and a "low joint" in the track, all negligently permitted to be at that place, plaintiff was thrown from the footboard of the tender where he was riding to the ground by a sudden and violent lurch of the engine and tender, occasioned by said defects, and that the wheels of the tender ran over and cut off three fingers of his left hand. He alleged, as injuries sustained therefrom: (1) That he has suffered and continues to suffer great physical pain and mental anguish. (2) "That at the time he was a strong, healthy man 36 years of age, and earning upon an average, when working full time, $75 per month; that as a result of his injuries he has become greatly incapacitated from performing any kind of manual labor, and has been permanently injured in the manner specified, and as a result thereof he has been damaged in the sum of twenty thousand dollars, to recover which this suit is brought." The verdict was for plaintiff for $14,000, which the district judge caused to be remitted to $9,000.
The first and second assignments of error complain of this paragraph of the charge: "The plaintiff, on entering the service of defendant, assumed all the risks ordinarily incident to the employment, by which is meant that he assumed such risks as did not arise from a failure of defendant to use ordinary care, for risks so arising he did not assume; and he had the right to rely upon the assumption that the defendant would use ordinary care to maintain its tracks in a reasonably safe condition; and the law did not put upon plaintiff the duty of inspecting the track before passing over it, but it did put upon plaintiff the duty to use his senses and observe what was open and patent to common observation; and if you believe the track was in a dangerous and defective condition, and that there was a low joint in the track, and that such condition and low joint was open and patent to common observation, you will find for defendant." The second assignment is: "The court erred in not including, in defining the risks assumed by plaintiff, those risks assumed by the servant from dangers caused by the master's negligence, such as the risks from conditions caused by the master's negligence that are known to the servant, and those that must be known to him in the exercise of ordinary care in the performance of his duties, and those that would be known to him in the exercise of ordinary care in the performance of his duties." The propositions relied on by appellant under these assignments are: (1) That the servant assumes the risk from such damages caused by the master's negligence (whether the same be open and patent or not) as the servant knows. (2) The servant assumes the risks from such damages caused by the master's negligence (whether the same be patent to observation or not) as he must or would know in the exercise of ordinary care in the performance of his duties.
Assumed risk, in reference to the master's negligence, does not exist unless the servant knows of the negligence and of the danger or the circumstances are such that he must be taken to have necessarily known of same in the prosecution of his work. With this rule in mind, it is evident that the charge in question did not misstate the law to defendant's prejudice. The only objection we perceive to it is in its instructing the jury absolutely to find for defendant if the defect indicated was open and patent to observation, which was favorable to defendant.
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