Murray v. Gulf, C. & S. F. Ry. Co.

• Decision Date: 12 February 1889
• Parties: MURRAY <I>v.</I> GULF, C. & S. F. RY. CO.
• Court: Texas Supreme Court

11 S.W. 125

MURRAY

v. GULF, C. & S. F. RY. CO.

Supreme Court of Texas.

February 12, 1889.

Commissioners' decision. Error from district court, Galveston county.

Trezevant & Franklin, for plaintiff in error. J. W. Terry, for defendant in error.

COLLARD, J.

This suit was brought by Robert G. Murray, plaintiff in error, against the Gulf, Colorado & Santa Fe Railway Company, for damages for injuries received by him while an employe of the company. It is alleged that he was a fireman on an engine used in defendant's switch-yard in the city of Galveston; that while he was in the discharge of his duty, and while in the act of ascending the tender, he caught hold of a hand-hold on the tender, which, being insecurely fixed, gave way, by reason of which he fell to the track or road-bed, and was run over by the tender then in motion, causing the injuries complained of. Plaintiff alleged that the hand-hold was a rod fixed to the tender, and was intended to be used as a means of ascending the tender, and that the rod, though in place, was not fastened; all of which was unknown to plaintiff, but which by proper care ought to have been known to defendant. On the trial defendant relied upon facts showing that plaintiff's injuries were proximately caused by his own negligence; that the engine and tender were moving at the rate of about two miles an hour, the tender in front; that there was a step at the cab on the engine intended for the engineer and fireman to get off and on the engine; that the fireman's place was in the cab; that the engine and tender were moving slowly, and plaintiff should have waited for the tender to pass, and mounted the engine at the cab-step, but instead of so doing took the risk of mounting at the rear end of the tender while it was moving towards him, upon a board used by brakemen in coupling cars to the tender; and that it was by his own fault and want of care that he fell and got hurt. The pleas of defendant were a general denial, and a general allegation that plaintiff's injuries were the result of his own contributory negligence, and that but for his own carelessness such injuries would not have occurred. Plaintiff specially excepted to the sufficiency of the plea, because it set up no facts indicating negligence of plaintiff. The court overruled the special exception, and this ruling is assigned as error by the plaintiff. We agree with plaintiff that the plea is too general. It is an abstract proposition, and no evidence could properly be admitted under it, if the law under the facts of the case required contributory negligence to be pleaded. Morrison v. Insurance Co., 69 Tex. 353, 6 S. W. Rep. 605; Railroad Co. v. Fox, 6 S. W. Rep. 574.

But was a plea of contributory negligence required under the facts of this case? It was held in the case of Railway Co. v. Crowder, 63 Tex. 503, that the plaintiff is not only required to show that the defendant was guilty of negligence, but that he himself acted with due care. Justice STAYTON, delivering the opinion, says: "The burden of proof resting on the plaintiff upon the issues of negligence of the defendant, and his own exercise of due care, requires that he should show the facts surrounding and leading to the accident, and if from these when shown a jury may reasonably infer negligence in the defendant contributing to the injury and the exercise of due care by the plaintiff, then he is entitled to a verdict; but if he does not show how the accident occurred by which he was injured, by showing his own relation to it, and the other surrounding facts, some or all of which may appear from the character of the accident itself, then he has not gone with his evidence as far as the law requires him to go to authorize a recovery." The case under consideration to which the above doctrine was applied was a peculiar one. A brakeman was killed by the cars running over his leg, and crushing it. His mother brought suit for damages under the statute. There was no evidence showing how the accident occurred; no one saw him at the time the injury was received, and consequently there was no evidence of any negligence on the part of the company. We conclude from the opinion that it is always incumbent on a plaintiff suing for injuries received by an employe to show how and under what circumstances the accident occurred; how he was employed at the time; what the facts were constituting the negligence of the defendant; and, if his own conduct was connected with the negligence of the defendant so as to bring about the injury, to show that connection, and in so doing to acquit himself of carelessness, or establish the fact that he was exercising due care, — for if in the necessary statement of his own case, and his connection with it, it appear that he was negligent, or failed to exercise proper caution, he could not recover. He could not recover unless it is shown how the injuries were received. We do not understand the court to hold that the plaintiff must do more than to develop his own case, and in so doing show negligence of defendant causing the injury, and at the same time, while showing his own relations to the occurrence, relieve himself of responsibility for it. Negligence might exist on his part outside of his own necessary proof. After proof of his case establishing the negligence of the defendant, and his own acts immediately connected therewith as free from fault, there may yet be such negligence on his part independent of his prima facie case as will discharge defendant of liability, and which, to become available as a defense, must be shown by the defendant. Such defense, we understand, must be alleged and proved by the defendant. Railway Co. v. Spicker, 61 Tex. 427. In the case of Railroad Co. v. Murphy, 46 Tex. 363, Chief Justice ROBERTS explains the doctrine as follows: "It is often stated that the plaintiff must show that the injury was caused by the negligence of the defendant, without any fault or negligence on his part. It would be more correct, it is thought, to say that the plaintiff must show that the injury of which...