"In October, 1909, the appellee Beasley instituted this suit against the Marshall & East Texas Railway Company and the appellant, Missouri, Kansas & Texas Railway Company of Texas, for damages for personal injuries sustained. The petition alleges that on the 28th day of August, 1909, the appellee was in the employ of the Marshall & East Texas Railway Company as an engineer on one of its passenger trains running between Marshall and Winnsboro in this state; that while at Winnsboro, and in the necessary discharge of his duties, he caused his engine to be moved along one of the tracks furnished by the Marshall & East Texas Railway Company at that place, for the purpose of examining and testing it, with a view of locating and repairing certain defects therein; that while walking along watching the machinery of the slowly moving locomotive he stepped upon or stumbled over a pole or piece of timber that had been `negligently left, placed, or allowed to remain along by the side of the track at that point, and that the piece of timber slipped or rolled away, or plaintiff stumbled over the same, throwing plaintiff down, throwing his foot under the engine; and that the wheels passed over his foot and leg, crushing the same so badly that the same had to be amputated.' Then follow other allegations not necessary here to mention. In a succeeding portion of the petition, and what may be termed a separate count, is the following: `The plaintiff shows that by some arrangement, the exact terms of which are unknown to plaintiff, and by some contract between the defendant Marshall & East Texas Railway Company and the defendant Missouri, Kansas & Texas Railway Company of Texas that the defendant Marshall & East Texas Railway Company used the tracks, side tracks, and switches of the Missouri, Kansas & Texas Railway Company of Texas at Winnsboro, Tex., in entering the town of Winnsboro and in having its passenger train remain at the said town of Winnsboro for one or more hours, during which time such repairs as were necessary were required to be made upon the engine of the Marshall & East Texas Railway Company by the engineer; and that while the engine upon which he was running as engineer was placed upon the said track at said station it became the plaintiff's duty to have the said engine moved along the track for the purpose of ascertaining whether there were any defects,' etc. Then follows a substantial repetition of former averments regarding the nature of the injury, the circumstances under which it occurred, and the conduct and omissions of duty upon which the charges of negligence are based. The defendants in the suit filed separate answers, but a part of the special answer of the Marshall & East Texas Railway Company was adopted by the Missouri, Kansas & Texas Railway Company of Texas. Upon a trial before a jury a verdict was returned in favor of the Marshall & East Texas Railway Company against the plaintiff, and in favor of the plaintiff against the Missouri, Kansas & Texas Railway Company of Texas, the appellant here, for the sum of $17,500. The Missouri, Kansas & Texas Railway Company of Texas alone has appealed.
"The facts show that Beasley was injured in the yards of the appellant at Winnsboro, Tex., under circumstances substantially as alleged in his petition. When the train upon which he was the engineer reached Winnsboro upon that occasion, it was placed upon a track called the `house track,' there to remain until it started on its return trip to Marshall some time later in the day. Beasley testified that during the forenoon, while going from Marshall to Winnsboro, he discovered that there was what he called a `knock' in the machinery of his locomotive, and that when he reached Winnsboro he undertook to locate and remedy that condition before returning; that after the dinner hour the fireman, at his request, moved the engine slowly along the track upon which it had been placed, to enable Beasley to locate the `knock' and see that the machinery was in proper working order. He had previously been under the locomotive and tightened some wedges, after which, he says, `I told him [the fireman] to move the engine. I was standing back even with the gangway between the engine and the tender, and I told him to back the engine, and as he started to backing the engine I started to walking up the left side of the engine, the north side of the engine, and got down something near the front drivers of the engine and turned around to look at the eccentrics, I think, and at that time the engine was backing up slowly, about three miles an hour, and when I turned I stepped on this pole, or struck it in some way—anyway, it threw me, and I fell pretty near down; fell on my elbows; and my left foot went under the engine, and the engine mashed my foot just above the mouth of the shoe; at least, the doctors cut it off half way between the ankle and knee. I had not seen this pole before I stepped on it. When I stepped on this pole, I was looking under the engine, looking under the boiler. The boiler of the engine is above the machinery; and I was looking beneath the boiler, and I was trying to see if any of the machinery was loose.' From other portions of the evidence it appears that the pole to which he had reference was an ordinary round pole, the size estimated to be from three to five inches in diameter and from six to seven feet in length. According to Beasley's testimony, it was lying nearly at right angles with the rails, with one end
pretty close to the rail. There was testimony which tended to show that the pole was one of a kind that had been used by lumber haulers in tightening chains around their loads of lumber to prevent the loads from slipping and had been left upon the yards upon occasions when they unloaded lumber into cars at that place. Just how long this particular pole had been upon the track does not appear from the record, but there was testimony showing that poles of a similar kind were observed for a week, and longer, in the yards of the appellant, lying about at different places.
"At a former day of this term of this court the judgment of the trial court was reversed and the cause remanded, because we were of the opinion that the court erred in portions of the charge hereinafter called to your attention. A motion for rehearing was overruled. Being in doubt as to the correctness of the disposition of the case, we have concluded to set aside the order overruling the motion for rehearing and certify to your honors the following questions:
"(1) The following paragraph of the court's charge was objected to: `It is the duty of a railroad company to exercise ordinary care to keep and maintain its railway track and roadbed in such condition that it will be reasonably safe to employés to operate and handle its trains thereon and do their work in connection therewith in the ordinary and usual manner of carrying on its business as a railway corporation at the time and place; and an employé employed by a railroad has the right to rely upon the assumption that the railway company has exercised ordinary care to keep its roadbed and track in a reasonably safe condition, and that the railway company has used ordinary care to keep the same reasonably free from obstructions, considering the purposes for which the same is used, and he may rely upon said assumption, unless he knows that such duty has not been performed, or unless in the discharge of his duty he must necessarily have acquired such knowledge.' The objection urged to this charge was the failure of the court to limit the duties therein specified to the Marshall & East Texas Railway Company, for the reason that the plaintiff was not in the service of the Missouri, Kansas & Texas Railway Company of Texas, and the relation of master and servant did not exist. It is also contended that the concluding portion of this charge was erroneous, because the effect was to give the plaintiff the right to rely upon the assumption stated, unless he actually knew of the obstruction or unsafe condition of the track and roadbed; whereas he should be held to have been guilty of negligence, or to have assumed the risk, if a person of ordinary prudence in the performance of his duty would have acquired a knowledge of the unsafe condition or the presence of the obstruction.
"Question: Was the charge subject to the objections urged?
"(2) The court also gave the following charge to the jury: `Now, if you should find from the evidence, by a preponderance thereof, that on or about the 28th day of August, 1909, the plaintiff was in the employ of the Marshall & East Texas Railway Company as engineer on its passenger train running from Marshall, Tex., to Winnsboro, Tex., and return, and that while at Winnsboro on one of said trips the plaintiff, in the discharge of his duty as such engineer, caused...
