Southern Pac. Co. v. De La Cruz

• Decision Date: 23 February 1921
• Docket Number: (No. 173-3193.)
• Citation: 228 S.W. 108
• Parties: SOUTHERN PAC. CO. v. DE LA CRUZ.
• Court: Texas Supreme Court

Page 108

228 S.W. 108

SOUTHERN PAC. CO. v. DE LA CRUZ.

(No. 173-3193.)

Commission of Appeals of Texas, Section B.

February 23, 1921.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Robert De la Cruz against the Southern Pacific Company. Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, which affirmed the judgment (201 S. W. 428), and the defendant brings error. Judgment of the trial court and of the Court of Civil Appeals reversed, and cause remanded for new trial.

Beall, Kemp & Nagle, of El Paso, for plaintiff in error.

G. E. Wallace and W. S. Berkshire, both of El Paso, for defendant in error.

McCLENDON, J.

The plaintiff, Robert De la Cruz, while in the employ of defendant railway as blacksmith helper, engaged in placing an iron mold in position under a "trip hammer," received injuries to his thumbs caused by the sudden falling of the hammer. This suit was brought to recover compensatory damages under the allegation that the injuries were proximately caused by the negligently unsafe and dangerous condition of the hammer. The case was tried before a jury, and submitted under a general charge. Verdict and judgment were for plaintiff in the sum of $3,000, of which amount $600 was later remitted. The Court of Civil Appeals affirmed the judgment, one of the judges dissenting. 201 S. W. 428.

The assignments of error in the Supreme Court complain of the trial court's refusal to submit defendant's special charge No. 2, which presented as an absolute defense to the action the issue whether plaintiff assumed the risk by reason of his having employed an unsafe method of performing the work, when a safe method was provided by the defendant; plaintiff having used his hands to place the mold in position under the hammer, whereas the evidence was sufficient to warrant a finding that defendant had provided tongs for that purpose.

This special charge is copied in full in the opinion of the Court of Civil Appeals. No question of its accuracy or of its propriety is made, except in the respect below mentioned. It is therefore not necessary to repeat the charge here.

The case arose under and is governed by the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), under which it is now authoritatively determined that, except in those cases where the defense of assumed risk is by express provision of the act taken away, that defense remains as it existed at common law before the act was passed. Boldt v. Railway Co., 245 U. S. 441, 38 Sup. Ct. 139, 62 L. Ed. 385; Railway Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, 1 Ann. Cas. 1915B, 475. So much is conceded in the majority opinion of the Court of Civil Appeals, and is not contested by defendant in error.

The ground upon which the majority held that the special instruction was properly refused was that, where there are two ways in which a servant may perform his work, one safe and the other hazardous, and he chooses the latter, from which choice his injury results, he does not thereby assume the risk of injury which may result from this choice. In arriving at this conclusion, it was conceded that our Supreme Court, in the cases of Railway v. Hynson, 101 Tex. 543, 109 S. W. 929, and Railway Co. v. Mathis, 101 Tex. 342, 107 S. W. 530, has announced the contrary doctrine. It was pointed out, on the other hand, that the Supreme Court has frequently referred to such conduct as constituting contributory negligence, citing Railway v. Matthews, 100 Tex. 63, 93 S. W. 1068; Railway v. Wall, 102 Tex. 365, 116 S. W. 1140, and Railway v. Samuels, 103 Tex. 59, 123 S. W. 121. It is contended that these citations show that our courts have used the term "assumed the risk" to express the conception of contributory negligence; and the conclusion is reached that the circumstances embraced within the special charge do not present the defense of assumed risk, but only that of contributory negligence, and that the charge was properly refused, because the defendant in open court requested that the issue of contributory negligence be not submitted to the jury, and because the charge submitted the issue as presenting a complete defense to the action, whereas the federal act introduces the doctrine of comparative negligence.

The sole question presented for consideration is, therefore, whether the holding of the Court of Civil Appeals, to the effect that the charge does not present the defense of assumed risk under the common law, is correct. That question we believe to be conclusively settled by the two cases first cited, as well as very generally by authority.

Before entering upon a discussion of this question, it is proper to say that in the Mathis, Wall, and Samuels Cases, above, the relation of master and servant did not exist; and those decisions have no bearing upon this question.

Many instances are found wherein courts have not drawn the proper distinction, or in fact any distinction at all, between the two defenses, and much confusion has resulted from this fact. This is alluded to by Mr. Labatt in the following language:

"Few lawyers, we imagine, realize the extent to which this department of the law has been unnecessarily obscured and complicated through the downright intellectual obliquity or the slovenliness of language by which the boundary line between them has been blurred or obliterated." 3 Master and Servant (2d Ed.) p. 3312.

It can be asserted, however, with all confidence, we believe, that probably no courts in the country have been more punctilious or guarded or more exact in expression in drawing the distinction between these two defenses than our own Supreme Court. Certainly nothing can be more clear than that the Supreme Court in the two cases first cited had this distinction obviously in view.

In the Mathis Case, opinion by Chief Justice Gaines, the plaintiff, an engineer, was injured by falling into the unlighted pit of a turntable in passing from the roundhouse of a railway to the depot. There were other ways for him to have gone, which were safe. He chose the dangerous path. The court had for decision four certified questions, the first three of which were: (1) Whether plaintiff as a matter of law assumed the risk in choosing the dangerous path; (2) whether he was guilty of contributory negligence as a matter of law; and (3) whether the trial court should have directed a verdict. We read from the opinion:

"Under the circumstances, we think that he assumed the risk, and consequently answer the first question in the affirmative.

"As pointed out in the case of Texas & Pacific Ry. Co. v. Bradford, cited above, between the doctrine of assumed risk and contributory negligence as applicable to such case, in contributory negligence the question usually arises, What would a prudent man have done under the circumstances? If a prudent man, under the exigencies of the case, would have taken the chances and acted as plaintiff acted, he is acquitted of negligence. If he assumes the risk the question of contributory negligence does not arise, for by his assumption of the risk he absolutely...