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

• Citation: 34 S.W. 298
• Parties: MISSOURI, K. & T RY. CO. v. SPELLMAN.
• Decision Date: 08 January 1896
• Court: Court of Appeals of Texas

34 S.W. 298

MISSOURI, K. & T RY. CO. v. SPELLMAN.

Court of Civil Appeals of Texas.

January 8, 1896.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Action by Pat Spellman against the Missouri, Kansas & Texas Railway Company to recover for personal injuries sustained while an employé of the defendant. From a judgment for plaintiff, the defendant appeals. Reversed.

Robt. Harrison and Geo. Thompson, for appellant. B. P. Ayres, for appellee.

FLY, J.

Appellee sued for damages arising from personal injuries received by him while in the employ of appellant. He recovered a judgment for $300. It was alleged in the petition that appellee was engaged in getting out and loading gravel to be used on the railroad track; that having scooped out the gravel from under the overhanging earth, and being desirous of removing and dislodging the same, the foreman in charge ordered appellee and others to go above and dig a ditch, in order that the ledge might be thrown down; that while so engaged the earth gave away, and precipitated appellee below, where he received serious bodily injuries. It was alleged that the danger of the work was known to the foreman, but not to appellee, and that the accident would not have occurred, had the foreman watched from below, and given notice to appellee of the first appearance of breaking. Appellee filed an amended petition, setting up, in addition to the above, circumstances of carelessness on the part of appellant in taking charge of him, after the accident, not furnishing him suitable attention, and not properly conveying him to the hospital. The latter allegation was stricken out, on the plea of limitation of one year. Appellant answered that the danger of the work was as apparent to appellee as to the foreman; that he assumed all risks, and was guilty of contributory negligence. In view of a reversal, we refrain from discussing the facts, except in so far as is essentially necessary in the further course of this opinion.

It is a general principle that a servant assumes all the risks ordinarily incident to the business, and where he has equal facilities with the master for ascertaining the danger incident to labor in which he is engaged he takes the risk upon himself. Railway Co. v. Lempe, 59 Tex. 19; Railway Co. v. French, 86 Tex. 96, 23 S. W. 642. The work required of appellee was not of such a character as to require experience to know the danger attendant upon it. Any man of ordinary mental capacity should have known that there was danger in dislodging an overhanging ledge, to those who were engaged in the work. That it was...