Kansas City, M. & O. Ry. Co. of Texas v. Barnhart

• Decision Date: 24 February 1912
• Citation: 145 S.W. 1049
• Parties: KANSAS CITY, M. & O. RY. CO. OF TEXAS v. BARNHART.
• Court: Texas Court of Appeals

145 S.W. 1049

KANSAS CITY, M. & O. RY. CO. OF TEXAS v. BARNHART.

Court of Civil Appeals of Texas. Ft. Worth.

February 24, 1912.

Rehearing Denied March 30, 1912.

Appeal from District Court, Nolan County; Jas. L. Shepherd, Judge.

Action by David Barnhart against the Kansas City, Mexico & Orient Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

H. S. Garrett, of Sweetwater, Blanks, Collins & Jackson, of San Angelo, and H. G. McConnell, of Haskell, for appellant. Woodruff & Woodruff, of Sweetwater, Hardwicke & Hardwicke, of Abilene, and Theodore Mack, of Ft. Worth, for appellee.

SPEER, J.

Appellee, an employé of appellant, received an injury while in the service of that company, and by this suit, instituted in the district court of Nolan county, recovered a judgment in the sum of $8,000, from which the defendant has appealed.

The assignment complaining that the court erred in refusing appellant's first application for a continuance is not considered, since the judgment must be reversed and the cause remanded for an error in the charge. That part of the charge referred to is as follows: "Plaintiff in entering upon employment of defendant, had the right to assume that the track of defendant company was free from obstructions so near the track as would endanger him in discharging his duties as such employé; and under the law plaintiff was not required to make any investigation or examination of said track to see that the track was safe and free from obstructions along and near thereto, if there was such obstruction." The paragraph states a correct proposition of law generally, when applied to the relation of master and servant, but one which is wholly inapplicable to the present case and, in view of the evidence, positively misleading. It is not a question in this case of what assumptions an employé may entertain upon entering the service of his employer, but rather, what knowledge did the servant have of the existence of the obstruction or defect at the time he exposed himself and received the injury? Appellee was a brakeman in appellant's service, and was injured in an attempt to descend a ladder on the side of a box car, whereby he came in contact with a standpipe too near the company's track, resulting in throwing him under the car and mangling his arm in such manner as to necessitate its amputation. On entering the employment of the company, he signed an application containing the following stipulation: "I hereby acknowledge that I have been notified that there are numerous...