El Paso & S. W. R. Co. v. Welter

• Decision Date: 26 January 1910
• Citation: 125 S.W. 45
• Parties: EL PASO & S. W. R. CO. v. WELTER.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

125 S.W. 45

EL PASO & S. W. R. CO. v. WELTER.^†

Court of Civil Appeals of Texas.

January 26, 1910.

Rehearing Denied February 16, 1910.

Appeal from District Court, El Paso County; James R. Harper, Judge.

Action by Joe Welter against the El Paso & Southwestern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Patterson, Buckler & Woodson, for appellant. Patterson & Wallace, for appellee.

NEILL, J.

This suit was brought by Joe Welter against the El Paso & Southwestern Railroad Company, the El Paso & Northeastern Railroad Company, and the El Paso Terminal Railroad Company to recover damages for personal injuries. The plaintiff alleged, substantially, that the defendant companies were on July 15, 1908, jointly and severally engaged in the business of operating in the city of El Paso a large number of railway tracks in their yards in said city, and employed a large number of switchmen and other employés whose business was to switch cars and make up trains in the usual course of business conducted by them; that on and prior to said date plaintiff was employed by the defendants, or at any event by the El Paso & Southwestern Railroad Company, and engaged in switching cars and making up trains in said yards under the direct supervision of defendants, or in any event under the direct supervision of the last-named defendant; that on said day he was ordered by the yard master in charge of said yards to switch a caboose and another car attached to the end of a string of cars standing on track No. 2, and after removing the caboose and other car, to transfer the remaining cars to the yards of other railroad companies; that after receiving such order it was his duty, before moving said cars, to look them over for the purpose of ascertaining whether they were in a condition to be moved, and that in going to the rear end of the string he discovered that the coupling appliance of the rear car was out of order, and, for the purpose of finding out whether the drawhead could be used in moving it, he went under the car to examine it; and that while doing so defendant's servants negligently struck the other end of the string with other cars with such force and violence as ran them against him before he had time to escape injury therefrom, by reason of which his hand and arm were injured, etc. The defendants' answers consisted of a general denial and special denial of any acts of negligence and pleas of contributory negligence and assumed risk. The plaintiff having dismissed his suit as to all the defendants except the El Paso & Southwestern Railroad Company, the case as between plaintiff and said company was tried before a jury, and the trial resulted in a verdict and judgment in favor of plaintiff for the sum of $9,000.

Conclusions of Fact.

As the first assignment of error complains that the court erred in refusing to charge the jury at defendant's request, that under the pleadings and evidence in this case their verdict must be for the defendant, and the propositions advanced thereunder involve conclusions on every essential controverted issue of fact in the case, our disposition of the assignment will be determined by our conclusions of fact upon the main issues.

The propositions asserted under the assignment are as follows: "(1) Negligence of a master cannot be predicated on the movement of cars without notifying a servant engaging in an act for which he was not employed, in the absence of evidence that the master knew the servant was under or about the car moved, or in the exercise of ordinary care and prudence ought to have so known. (2) Aside from appellee's failure to use the blue flag as required by appellant's rule, the evidence was conclusive that plaintiff's injury resulted entirely from his own negligence, or at least that his own negligence proximately contributed to cause his injuries. (3) The evidence showed that plaintiff assumed the risk, as a matter of law, of being injured as he was. (4) Appellant having provided and promulgated a rule which, if obeyed by appellee, would have protected him from injury, should not be made to respond in damages for an injury resulting from appellee's failure to obey such rule." They will be considered in the order presented.

1. This proposition, while good law in a case to which it is applicable, is not sound in its application to the case in hand. Its vice lies in assuming that the appellee, when injured, was "engaging in an act for which he was not employed." This assumption involves an issue of fact, made by the pleadings and evidence, which it was within the exclusive province of the jury to decide, and it would have been an invasion of a domain in which it had no right, and an usurpation of authority, for the court to have taken the question from the jury and have decided it which would have been done had the requested charge been given.

2. Laying aside for the present the question as to whether the plaintiff's failure to use the blue flag was negligence—to be considered when we come to pass upon the fourth proposition—we will first observe that the question of contributory negligence is one of fact, the burden of proving which is upon the defendant who alleged it as a defense, and that unless the state of the evidence is such that no fair-minded man of ordinary intelligence can reach any other conclusion from it than that the party charged with it was guilty of such negligence (which can very rarely be the case), such question must be determined by the jury. When, in view of this principle, the evidence is read and considered, it cannot be said that it is conclusive that plaintiff's injury resulted entirely from his own negligence, or that his negligence proximately contributed thereto.

3. The servant never assumes the risk of his master's negligence, nor of such negligence as is chargeable against the master, unless he has, or is chargeable with, notice of such negligence, and can reasonably anticipate its concomitant danger. Such negligence of the master being shown as imposes a risk upon his servant not ordinarily incident to his employment, or materially adds to or enhances a risk that is, the burden rests upon the master to prove that his servant who has been injured by such negligence knew or was charged with knowledge of such negligence, and could have reasonably anticipated its attendant danger. There being evidence reasonably tending to show that defendant, or its servants operating them, was negligent in the excessive force used in propelling the cars which struck the string, to which the one whose drawhead plaintiff was examining was attached, it cannot be said as a matter of law that plaintiff assumed the risk of such negligence.

4. The rule referred to in this proposition is as follows: "(26) A blue flag by day and a blue light by night displayed at one or both ends of an engine, car or train, indicates that workmen are under or about it. When thus protected it must not be coupled to or moved. Workmen will display the blue signals and...