Missouri, K. & T. Ry. Co. v. Crane

• Decision Date: 08 April 1896
• Citation: 35 S.W. 797
• Parties: MISSOURI, K. & T. RY. CO. v. CRANE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

35 S.W. 797

MISSOURI, K. & T. RY. CO. v. CRANE.¹

Court of Civil Appeals of Texas.

April 8, 1896.

Appeal from district court, Grayson county; Don A. Bliss, Judge.

Action by J. A. Crane against the Missouri, Kansas & Taylor Railway Company for personal injuries caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Affirmed.

Foster & Wilkinson, A. L. De Armond, and Head, Dillard & Muse, for appellant. C. B. Randell, for appellee.

FLY, J.

Appellee, an employé of appellant, sued for damages inflicted on his person through the faulty construction of certain drawheads, and the negligence of a foreman under whose authority appellee was working. The answer was a general denial and plea of contributory negligence. The case was tried by a jury, and resulted in a verdict for appellee for $5,000, and judgment was rendered accordingly.

Appellee, a young man, being in the employ of appellant as a night switchman, was ordered by his foreman to mount a caboose car that was moving, to ride it to where another car was standing, and couple them. He mounted the caboose, rode to within a short distance of the other car, sprang down, and ran to the other car, and was about to complete the coupling, when other cars struck the caboose, threw it against appellee, knocked him down, and cut off the fingers of his right hand. The injury occurred through the negligence of the foreman in ordering cars moved against the caboose while appellee was performing the coupling. No notice was given to appellee of the order to strike the caboose with other cars while he was performing the coupling in obedience to orders. The court charged the jury that: "Every servant assumes the risks naturally or ordinarily incident to the nature of his employment. A master is not an insurer of the safety of the servant. Therefore, when a servant receives an injury from one of these risks, he cannot recover any damages from the master on account of such injury. But a servant does not assume any risk arising from the want of ordinary care upon the part of the master." It is contended by appellant that the last sentence above quoted is erroneous, in that it forbids the jury to consider a risk arising from appellant's mode of conducting its business which was well known to appellee. In view of the unchallenged evidence that such orders as were given by the foreman were never given without warning to those between the cars, we cannot see that appellant was injured by it. If it had been shown that it was the custom for the foreman to order employés to go between cars to couple them, and then give orders to move the cars without warning, it might be held that appellee had assumed the risk resulting from appellant's recklessness in the matter; but no such testimony was introduced, and consequently no harm could have resulted to appellant from the charge, if it should be deemed erroneous. It becomes unnecessary to pass on the correctness of the charge as an abstract proposition of law.

The fourth and fifth assignments present error in the admission of proof that it was not the custom to order switchmen to make a coupling, and then order the cars between which the coupling is being made to be struck without notifying the switchman. Appellant alleged that the injury was caused through contributory negligence on the part of appellee, and in order to meet this charge it was permissible to show the custom in regard to making such couplings. If it had been customary to do what was done when appellee was hurt, it might have been one of the risks assumed by appellee, as is argued by appellant in support of the first assignment of error, and he would not have been entitled to recover. Wood, Mast. & S. p. 793; Kroy v. Railroad Co., 32 Iowa, 357. On the other hand, if it was not customary to give orders to couple cars, and then, without notice, drive them together, it was proper to prove it in order to show that appellee was not injured through his own negligence. The eighth paragraph of the charge is as follows "Bearing in mind the foregoing instructions, if you believe from the evidence that the plaintiff, J. A. Crane, was in the employment of the defendant, the Missouri, Kansas & Texas Railway Company of Texas, in the capacity of a...