Missouri Pac. Ry. Co. v. White

• Decision Date: 28 January 1890
• Court: Texas Supreme Court
• Parties: MISSOURI PAC. RY. CO. <I>et al.</I> <I>v.</I> WHITE.

13 S.W. 65

MISSOURI PAC. RY. CO. et al.

v. WHITE.

Supreme Court of Texas.

January 28, 1890.

Commissioners' decision. Appeal from district court, Leon county; SAMUEL R. FROST Judge.

Action by Hugh L. White, against the Missouri Pacific Railway Company and the International & Great Northern Railway Company, to recover for personal injuries. Defendants appeal from a judgment for plaintiff of $7,500.

F. M. Etheridge and B. D. Dashiell, for appellee.

ACKER, P. J.

Appellee brought this suit to recover damages for personal injury, which caused the permanent loss of the use of his hand, while he was employed by appellants as a brakeman on their freight trains, in which capacity he had served from the 31st day of October to the 24th of November, 1887, when he received the injury. There was verdict and judgment for plaintiff for $7,500. It was alleged, and the plaintiff testified, that the injury was caused by the unusual and hazardous construction of the couplings of certain foreign cars composing a circus train which defendant companies received at Palestine, to be transported over their road to Tyler, Tex.; that he was familiar with the construction of the cars belonging to, and in general use by, the defendants and other companies, but had never before seen cars constructed like those composing the circus train, which were extrahazardous because of having dead-woods or buffer blocks on each side of the draw-heads; that these buffer blocks prevented the coupling being made in the usual way, and required the brakeman to hold the pin with one hand above the blocks, and to guide the link with the other below the blocks, in making couplings; that in attempting to make a coupling between these cars at Tyler, in obedience to an order of the conductor of the train, his hand and wrist were caught between the buffer blocks, and crushed, rendering him a cripple for life; that he had had but a few weeks' experience as a brakeman; that he was not informed of the peculiar construction of the circus car, nor warned of the extra danger therefrom; that if the couplings of these cars had been such as were in use on defendants' roads he would not have been injured; that when he was ordered to make the coupling the cars were within two or three feet of each other, one moving towards the other, and he stepped in between them, and attempted to make the coupling in the usual way, without knowing of the existence of the buffer blocks, which he did not notice until he received the injury.

The only proposition submitted under the first assignment of error is: "That a servant is presumed to have assumed all the risks ordinarily incident to the business or employment in which he engages; also, all other open and visible risks, whether usually incident to the business or not." In the case of Railway Co. v. Callbreath, 66 Tex. 528, 1 S. W. Rep. 622, a case very similar in every particular to this, it was said: "As a general principle, the law is well established that one who accepts the employment of another assumes all ordinary risks incident to such employment, and cannot recover for injuries resulting therefrom. * * * And as a general rule it is not the duty of the employer to instruct him as to the rules of service, or warn him of the dangers...