Mo. Pac. R'Y Co. v. Watts, Case No. 1869.

• Decision Date: 16 October 1885
• Docket Number: Case No. 1869.
• Citation: 64 Tex. 568
• Court: Texas Supreme Court
• Parties: THE MO. PAC. R'Y CO. v. R. P. WATTS.

64 Tex. 568

THE MO. PAC. R'Y CO.

v.R. P. WATTS.

Case No. 1869.

Supreme Court of Texas.

Oct. 16, 1885.

APPEAL from Anderson. Tried below before the Hon. F. A. Williams.

The case is sufficiently stated in 63 Tex., p. 549.John Young Gooch, for appellant, cited: Dallas v. G., C. & S. F. R. R. Co., 61 Tex., 196-201;Robinson v. H. & T. C. R'y Co., 46 Tex., 550; Cooley on Torts, 543-545.

That the company was not bound to give instruction about the service unless it was asked, he cited: Watson v. H. & T. C. R'y Co., 58 Tex., 438; Wood on Master and Servant, § 326.

R. A. Reeves & Sons, for appellee, cited: Wood's Master and Servant, secs. 349, 353, 354; Pierce on Railroads, p. 376; Rorer on R., p. 835; Cooley on Torts, pp. 549-555, 562; Shearman & Redfield on Neg. (3d ed.), secs. 92, 93, 94.

ROBERTSON, ASSOCIATE JUSTICE.

In this case the appellee recovered his first judgment against the appellant mainly upon the theory that the appellant was responsible for the negligent acts of its yardmaster and the foreman of carpenters engaged in its repair shops. On the former appeal, reported in 63 Texas, that judgment was reversed, and the theory upon which it was sustained in the court below was repudiated. It was then held by this court that the servants named and appellee, who was one of the carpenters under the orders of the foreman, were fellow-servants. On the trial resulting in the judgment now here for revision, another theory was presented in the charge of the court, involved, but less decisively, in the first judgment. This charge authorized the jury to find for appellee if they should believe, from the evidence, that when he entered the employment of the appellant he was inexperienced in the business “and did not know of the danger to which he was subjected, and was not informed as to the course of the business and the rules, regulations and usages under which it was conducted, and that the defendant or its employees, who employed and had control over him, knew that he was so inexperienced and uninformed, and that they did not inform or warn him, and that he was thereby subjected to a danger of which he did not know, and which he would have avoided had he been so warned or instructed, and which was not open to his observation had he made proper use of his faculties and information.” Under this instruction, the jury found for appellee, and the appellant complains both of the charge and the finding.

It is urged that appellant was under no legal obligation to inform appellee of the dangers of the service for which he was seeking an engagement, unless such information was expressly solicited. The master's duty to speak in such cases arises from the unfairness of silence. The master here knew that the service was dangerous, and that the appellee in seeking it was ignorant of its character. If the appellee had known the dangers to which his new service would expose him, he might have declined the engagement entirely, or forewarned he could have added to appellant's precautions the vigilance of his own senses. Within a few moments after he was employed he was put to work between two box-cars, that were standing near together on the same track in a line of cars switched on this track to be repaired. As long as these cars were stationary there was no danger. There was nothing in the situation to advise him of the...