"Gentlemen of the Jury: This is a suit by H. R. Milam, as plaintiff, against the Missouri, Kansas & Texas Railway Company of Texas, as defendant, to recover damages for personal injuries alleged to have been inflicted upon plaintiff by defendant while in the service of defendant as a brakeman on one of its freight trains. Plaintiff alleges that on January 29, 1897, he was in the employment of the defendant company as a brakeman on one of its freight trains, and was then engaged in such service at Waco, Texas, and that on said date it became necessary for plaintiff, in the performance of his duties, to go between two of defendant's cars to make a coupling, and while so engaged between said cars he lost his footing and fell between the drawheads of the cars, which came together at that moment and crushed plaintiff's hips and thighs, and crushed and injured his spinal column, severing the muscles and ligaments which joined his backbone to his hips, and wounded his genital organs, lower bowels, kidneys, and bladder, and otherwise injuring him internally, and caused him great mental and physical pain and suffering, and that by reason of such injuries plaintiff has lost the use of his lower limbs, his health is greatly impaired, and he has been disabled from doing any labor from the time of said injuries to this time, and has lost his wages for said time; that his injuries are permanent and incurable, and his ability to earn money in the future has been permanently impaired. For all of which injuries plaintiff seeks to recover damages in this suit. Plaintiff alleges that the hand-holds or grab-irons in the end of each freight car were necessary appliances to enable brakemen to couple and uncouple freight cars with reasonable safety; that the stationary car upon which plaintiff was trying to make a coupling was not equipped or provided with a hand-hold or grab-iron on the end thereof, which fact was known to the defendant, or by the exercise of ordinary care could and would have been known to defendant, but was unknown to plaintiff, and that plaintiff, at the time alleged, entered between the cars, one of which was stationary and the other moving, for the purpose of making a coupling, and that he was caused to fall, and received the injuries complained of, because of the absence of hand-holds on said stationary car, and that the defendant was guilty of negligence in failing to provide said car with hand-holds or grab-irons; and that plaintiff himself was using due care in attempting to make said coupling. The defendant answers by a general denial of all the allegations of plaintiff's petition, and specially says that the stationary car plaintiff was trying to couple on the occasion of his injury was provided with all necessary hand-holds on the end thereof for use of brakemen in making coupling of same. That the business of a brakeman was a dangerous one, especially in coupling cars, which was well known to plaintiff, and it was especially dangerous on the occasion of said injury, because of the frozen condition of the ground; that, if plaintiff was injured as alleged, it was either an accident incident to the dangerous business he was engaged in, that could not be avoided, or was due to plaintiff's want of ordinary care in the manner of making or trying to make said coupling; that plaintiff negligently went between the cars with his face turned to the moving car, and attempted to make the coupling in that position, which was more dangerous than to couple cars with the face turned toward the stationary car; that plaintiff did not make use of, nor attempt to use, the hand-holds on the end of the stationary car, and, if said hand-holds were missing, it would not have contributed to his injuries; and that said injuries were occasioned by defendant's own negligence. Defendant further alleges that, if the hand-holds on said stationary car were missing, that plaintiff knew, or by the exercise of ordinary care could have known, it in time to avoid the danger, and it was a patent, open defect; and, in attempting to make said coupling under the circumstances, plaintiff assumed the risk therefrom, and was guilty of contributory negligence, wherefore it says defendant is not liable in this suit.
"Upon the law of this case you are instructed as follows: (1) It was the duty of the defendant railway company to use ordinary care and diligence to furnish safe machinery, and cars properly equipped, and supplied with appliances reasonably necessary and proper to enable its employés to perform the duties required of them with reasonable degree of safety. (2) It was also the duty of the plaintiff to exercise ordinary care and prudence in the performance of his duties, to avoid injury to himself. (3) By the term `negligence,' as used in this charge, is meant the doing of that which a person of ordinary care and prudence would not have done under similar circumstances, or the failure to do that which such a person would have done under like circumstances. (4) By the term `ordinary care,' as used in this charge, is meant such degree of care as a person of ordinary prudence would exercise under similar circumstances. (5) The plaintiff, when he entered the service of the defendant company as a brakeman, assumed the risks and dangers ordinarily incident to such employment, but did not assume any risks arising from the negligence of the defendant, if any there was, unless the plaintiff knew of such negligence in time to have avoided injury therefrom. (6) Now, if you find from a preponderance of the evidence that the plaintiff, H. R. Milam, was in the employment of the defendant company as a brakeman, as alleged in his petition, and that while engaged in his duties as such brakeman, in coupling cars
for said defendant, he was injured as alleged in his petition; and you further find from the evidence that the stationary car which plaintiff was endeavoring to couple at said time was not provided with a hand-hold or grab-iron on the end thereof, and that the defendant knew, or by the exercise of ordinary care and diligence could have known, that said car was not so equipped with the hand-hold, if you find it was not, prior to said accident, and that a hand-hold in the end of said car was a necessary appliance of said car, to enable brakemen to perform their duties in coupling said car with safety, and that such hand-hold was such an appliance as defendant company rested under an obligation to provide in the discharge of its general duty to use ordinary care to furnish reasonably safe appliances in coupling cars, as heretofore explained to you in this charge, and that the failure of defendant company to provide said stationary car with such hand-hold, if you find there was such failure, amounted to negligence on the part of said company, as that term has been hereinbefore defined in this charge, and that such negligence, if any, caused plaintiff to receive the injuries complained of in his petition, or any of them, — then you will find a verdict for the plaintiff, unless you further find that plaintiff was himself guilty of negligence which contributed to his injuries, as will be hereinafter explained. (7) You are further instructed that if you find from the evidence that plaintiff was himself guilty of negligence in the manner in which he attempted to make said coupling, which contributed to his injuries, then he cannot recover, even though you should find the defendant company was negligent in using said car without hand-holds, if it did so use it. (8) Now, if you find from the evidence that said stationary car was without a hand-hold, and that the defendant company was guilty of negligence in using said car in such condition, if you find it did so use it, but you further find that plaintiff knew or ascertained that said car was not supplied with a hand-hold in the end thereof in time to have avoided the injuries received by him, if any, by the exercise of ordinary care on his part, then he cannot recover; and, if you so find, you will return a verdict for the defendant. (9) You are further instructed that if you find from the evidence that the plaintiff, at the time he attempted to make the coupling in which he was injured, if he was injured, went between the cars with his face turned towards the moving car, and attempted to make the coupling in that position, and that this was more dangerous than to couple cars with the face turned towards the stationary car, and that such act, if any, on plaintiff's part, was negligence, as that term has been heretofore explained, and that same contributed to plaintiff's injuries, then in that event plaintiff would be chargeable with contributory negligence, and could not recover; and, if you find the facts to be as above set out, you will return a verdict for the defendant, even though you should find the defendant was guilty of negligence in failing to provide hand-holds on the end of said stationary car, if it did so fail. (10) You are further instructed that unless you find from the evidence that the hand-hold was not on the end of the stationary car at the time of the accident, and that the absence of the hand-hold was negligence on the part of defendant, and was the proximate cause of plaintiff's injuries, you will return a verdict for the defendant. (11) Unless you find from a preponderance of the evidence that the stationary car plaintiff was endeavoring to couple at the time of the...
