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

• Decision Date: 13 June 1895
• Citation: 31 S.W. 706
• Parties: JONES v. GALVESTON, H. & S. A. RY. CO.
• Court: Texas Court of Appeals

31 S.W. 706

JONES v. GALVESTON, H. & S. A. RY. CO.

Court of Civil Appeals of Texas.

June 13, 1895.

Appeal from district court, Gonzales county; T. H. Spooner, Judge.

Action by Thomas S. Jones against the Galveston, Harrisburg & San Antonio Railway Company for personal injuries. From a judgment sustaining a demurrer to his complaint, plaintiff appeals. Affirmed.

Fleming, Camp & Camp and Burgess & Hopkins, for appellant. McNeal, Harwood & Walsh, for appellee.

FLY, J.

This is a suit for damages by appellant on account of injuries sustained by his being thrown from a hand car through the negligence of the foreman of a section gang. A general demurrer was sustained to the petition by the district judge, and its sufficiency is the only question before this court. There are three grounds of negligence alleged: First, that appellant was ordered by the foreman to take a seat in a certain position on the rear of the car near the brake handles; second, that the car was being run very rapidly backward and down grade; and, third, that appellant was ordered by the foreman to arise and lay hold of the brake handles at a time when they were working up and down very rapidly, and it was impossible for him to do so without being struck by the handles. It is also alleged that appellant did not know the danger that would result from obedience to the orders of the foreman, and that the foreman either knew or could have known by the exercise of reasonable care and scrutiny the danger attending the execution of his orders.

The master is not an insurer of the servant against danger ordinarily incident to or arising out of his employment, and the latter will be guilty of contributory negligence if he fails to exercise proper care and vigilance in protecting himself from danger, even when acting under the direct orders of a vice principal. Employés must be regarded as free agents, capable of protecting themselves from dangers that are as open and apparent to them as to their employers; and, where there has been a lack of ordinary care and prudence in guarding against such dangers, the employer cannot be held responsible. In other words, the servant of mature years, when he enters the service of the master will be presumed to have retained the judgment and discretion common to the ordinary man; and he cannot justify acts of contributory negligence on the ground that he acted under orders, when, by the exercise of the ordinary faculties of the mind, he could have seen the danger, and have protected himself from the same. He is presumed to know and comprehend obvious dangers which require no skill or experience to be appreciated, or such dangers as the skill and experience he may have ought reasonably to charge him with. The negligence of the master cannot be predicated simply on the fact that he ordered his employé to do the work, and this is true whether the work was within the scope of the ordinary duties of the employé or not. Bailey, Mast. Liab. p. 223; Cole v. Railway Co. (Wis.) 37 N. W. 84. In the Wisconsin case, Cole was the foreman of a bridge gang, and, in obedience to the request of the superintendent, undertook to do certain work with an engine not connected with his employment, and, while so engaged, was injured, and the court said: "He made no objection to doing the work on the ground that it was dangerous, or that he had not sufficient knowledge or experience to do the same safely to himself and the men under his charge. Under these circumstances, it seems to us that no negligence can be attributed to the company for directing him to do the work. He undertook the work voluntarily, knowing the general danger of the employment, and the rule applicable to work done in his ordinary employment must be applied to the work done by him under...