Missouri, K. & T. Ry. Co. of Texas v. Williams

• Decision Date: 29 May 1909
• Citation: 120 S.W. 553
• Court: Texas Court of Appeals
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. WILLIAMS.<SMALL><SUP>†</SUP></SMALL>

120 S.W. 553

MISSOURI, K. & T. RY. CO. OF TEXAS v. WILLIAMS.^†

Court of Civil Appeals of Texas.

May 29, 1909.

Rehearing Denied June 19, 1909.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Suit by J. P. Williams against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

Coke, Miller & Coke and Head, Dillard, Smith & Head, for appellant. Wolfe, Hare & Maxey, for appellee.

RAINEY, C. J.

Appellee sued the appellant to recover damages for personal injuries received by him through the negligence of the engineer in making an emergency, instead of a service, stop in the yards at Dallas, which caused appellee to fall from the top of the caboose. The appellant answered by general demurrer, general denial, and specially contributory negligence and assumed risk. A trial resulted in a verdict and judgment in favor of plaintiff for $20,000, from which the railway company appeals.

Appellee alleges as a basis for recovery, in substance, as follows: "That he was in the employment of the defendant in the capacity of a freight brakeman, and on the 9th of November, 1907, he was rear brakeman on a south-bound freight train from Denison, Tex., to Dallas, Tex., which was stopped in defendant's yards in Dallas. That it was his duty as the train approached Dallas to get on top of the train, which he did. That the usual, customary, and proper method and manner of stopping trains in defendant's yards, under the circumstances existing at the time the train he was on was stopped, was for the engineer to make a service application of the air and stop the train gradually, but that, instead of doing this, the engineer unnecessarily, improperly, and negligently made an emergency application of the air and stopped the train so unusually and unnecessarily sudden as that plaintiff was thrown from his position on top of the caboose, and caused to fall between the cars and was thereby injured. That defendant and its employé, the engineer, were guilty of negligence in applying the air in the emergency and stopping the train so unusually and unnecessarily sudden, and in failing to make a service application of the air and in failing to stop the train gradually." The evidence supports the foregoing allegations, and further shows that the appellee was severely injured, and there is no question raised as to the judgment being excessive. That an emergency or washout signal and a service signal are the same, except the emergency signal is given more rapidly than a service signal.

The first error assigned complains of the sixth paragraph of the charge, which is as follows: "When a person enters the employment of a railway company, he assumes the risks and dangers ordinarily incident to such employment; but he does not assume any risks arising from the negligence, if any there be, on the part of such company, undess he knows of such negligence and the attendant risk, or in the exercise of ordinary care in the discharge of his own duty must necessarily have acquired knowledge thereof in time to have avoided injury therefrom." The proposition made thereunder is as follows: "The practical effect of a charge to the jury that an employé does not assume any risks arising from the negligence of the employer `unless he knows of such negligence and the attendant risk, or in the exercise of ordinary care in the discharge of his own duty must necessarily have acquired knowledge thereof in time to have avoided injury therefrom,' is to repudiate the old, old doctrine of patent and obvious risks, and is therefore error. The law is that an employé is chargeable with notice of, and is guilty of contributory negligence if he does not ascertain, those risks which are patent and open to common observation to a man of ordinary prudence engaged as the employé is." The charge here complained of is in strict accord with the definition of "assumed risk" as announced by our Supreme Court in the case of Railway Company v. Hannig, 91 Tex. 347, 43 S. W. 508. So far as we know, that case has never been overruled by said court, and until it is it is our duty to follow it. In Peck v. Peck, 99 Tex. 10, 87 S. W. 248, the Hannig Case was reviewed; but we do not understand that the principle there announced was overruled. It was the rule in the Dallas yards to bring trains to a standstill by making what is known as service stops, and the appellee assumed the risk of the train being stopped on this occasion in the usual and customary manner. He was not put on notice, and not called on to anticipate that the train would be stopped in an unusual manner. There was no occasion for the sudden stopping of the train in the sudden manner in which it was stopped, and we are of the opinion there was no error in the court's charge defining "assumed risk."

The second assignment of error complains of the following paragraph of the court's charge, viz.: "On the other hand, if you find and believe...