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

• Decision Date: 21 November 1908
• Citation: 114 S.W. 157
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. ROMANS.
• Court: Texas Court of Appeals

114 S.W. 157

MISSOURI, K. & T. RY. CO. OF TEXAS v. ROMANS.

Court of Civil Appeals of Texas.

November 21, 1908.

Rehearing Denied December 12, 1908.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

Action by J. W. Romans against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

Coke, Miller & Coke and Jno. T. Craddock, for appellant. Thompson & Mead, B. Q. Evans, and C. L. Elder, for appellee.

RAINEY, C. J.

This is an action for damages for personal injuries, brought by appellee against appellant, caused by the negligence of appellant. Defendant pleaded a general demurrer, general denial, and specially contributory negligence and assumed risk. A trial resulted in a verdict and judgment for $2,625 in favor of appellee.

A peremptory instruction was asked by the appellant to find for it, which was refused, and this is the basis for the first assignment of error. Plaintiff at the time of the injury was in the employ of defendant, loading cars with gumbo at a plant owned and controlled by defendant. At said plant there were three large embankments of burnt gumbo in parallel rows several hundred yards in length, probably 100 feet wide and 12 to 15 feet high. These embankments were made originally by scooping out a ditch in the ground, piling dirt, old timbers, and coal therein, in alternate layers, and burning the black soil in this way so as to form a ballast known as "burnt gumbo." When the ballast in these embankments was ready to be moved, flat cars were run in on a track built parallel with and near to the edge of one of the embankments, and the ballast was thrown upon these cars with scoop shovels by men employed to load at so much per car. These men so employed in loading the cars worked independently of each other and according to their own methods and practically in their own time; there being, however, a foreman who inspected the cars as to quality and quantity when loaded, accepted them when sufficiently loaded, and gave to the individual loader credit for the car at the agreed price. The loading was begun at the outer edge of the embankment, and, when a few feet from the side of the embankment had been thus loaded and removed, the track crew would move the track nearer to the embankment from time to time, and the loading would then proceed until the whole of the embankment had been loaded. In the process of moving loaded cars and putting empty cars in on the track there was more or less switching by the train crew, so that if a loader had begun the loading of a car at a given point on the embankment, if any of this switching was done before the loading of the particular car was completed, the car might not be at the same place, but might be farther up or down the track after the switching had been completed than when he began loading it. The loaders were all employed and discharged by a superintendent, who had general charge of the work. Plaintiff had partly loaded a car when he stopped work for the night, and when he returned next morning the car had been moved some hundred feet or more from the position it occupied the evening before. In attempting to throw a shovel of gumbo on the car, he made a misstep, and his foot went into a hole, which caused him to fall across a ridge of gumbo that had formed along the edge of the cross-ties by some of the gumbo falling as it was being loaded, and thereby hurt himself as complained of. The hole into which he stepped and caused his fall was approximately 2½ feet long, 2 feet wide, and 1½ feet deep. This hole was filled, or nearly so, with fine dust, or soot, from the gumbo, which obscured the hole, and said hole was not seen by plaintiff, nor was its existence known to him. Plaintiff was inexperienced in the work, having only been employed at this work five days; a Sunday intervening. Defendant had a track crew out there who worked on and moved the track and leveled up the ground when necessary. The evidence fails to disclose how the hole came to be there, nor is the evidence sufficient as to circumstances to warrant a conjecture as to how it was produced. We are of the opinion, however, there was negligence in placing an inexperienced hand to work there with the ground in that condition. From the circumstances the jury may have concluded that the hole existed when the track was last moved, and that it should have then been filled by the track crew. However this may be, the court was not warranted by the evidence to instruct a verdict for appellant.

Appellant's second assignment of error is as follows: "The court erred in the following paragraph of its charge to the jury: `It is the duty of a railway company to exercise ordinary care to furnish its servants and employés a reasonably safe place or premises in which to perform their work, and, when a person enters the employment of a railway company, he has a right to rely upon the assumption that the place where he is called upon or required to work is reasonably safe, and he is not required to use ordinary care to see whether the company has done its duty in this respect, and he does not...