Texas & N. O. R. Co. v. Kelly

• Decision Date: 14 April 1904
• Citation: 80 S.W. 79
• Parties: TEXAS & N. O. R. CO. v. KELLY.
• Court: Texas Supreme Court

80 S.W. 79

TEXAS & N. O. R. CO. v. KELLY.

Supreme Court of Texas.

April 14, 1904.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Action by Bernard R. Kelly against the Texas & New Orleans Railroad Company. There was a judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, which certified certain questions to the Supreme Court. Questions answered.

Baker, Botts, Baker & Lovett, Andrews & Ball, and C. L. Carter, for appellant. Lovejoy & Malevinsky, for appellee.

BROWN, J.

This is a certified question from the Court of Civil Appeals of the First Supreme Judicial District. The statement and questions are as follows:

"The action was brought by Bernard R Kelly against the Texas & New Orleans Railroad Company to recover damages for personal injuries received by Kelly while he was in the employment of the company resulting, as alleged, from its negligence. The petition showed that the plaintiff was at work for the defendant as the foreman of a gang of men in the construction and extension of its line of railroad from Rockland to Cedar, in Nacogdoches county; that while riding on a hand car about noon March 13, 1901, going from his place of work to his camp for dinner, he ran into an obstruction upon the track, and was seriously injured. The alleged acts of negligence on the part of the defendant were that it erected and permitted to remain across the track a dangerous and hazardous obstruction consisting of heavy poles, and did not warn the plaintiff of its presence. The defendant answered by general demurrer and general denial and special pleas in bar of facts to show assumed risk and contributory negligence. One of the facts alleged was that the plaintiff was using a hand car that he knew to be defective in that it was without a brake. In a supplemental petition the plaintiff admitted that the hand car he was using was defective in the respect alleged, and pleaded that he had been directed to use it by a superior officer. A supplemental answer was filed by the defendant, demurring to the supplemental petition, and denying its allegations of fact. After the court had overruled the demurrers, the cause was tried by jury, and resulted in a verdict and judgment in favor of the plaintiff for $30,000.

"At the time he received the injuries complained of, the plaintiff was in the employment of the defendant as foreman of a bridge gang, and was working near the town of Nacogdoches in the construction of the extension of the defendant's railroad from Rockland to Cedar. The company was building its track north from Rockland, and had reached a point near Nacogdoches; but that part of the road had not been finished, and trains were running only as far as Huntington, several miles south of the place of the accident. The track over which the plaintiff was riding when he was injured had been constructed only two or three days. It had not been surfaced up, and was in an unfinished condition, and had not been turned over to the proper department for the operation of trains. As foreman the plaintiff had charge of a gang of men in camp about three miles south of Nacogdoches, and working between the camp and that town. On the morning of the accident, March 13, 1901, he went out to work with 20 men to fix a cattle guard and build a bridge, using two hand cars furnished by the company for the transportation of the men and tools. One of the hand cars had no brake on it, and had been in that condition for about two weeks. It was the plaintiff's duty to repair the car, and he had made a brake for it on the day before the accident, and on the morning of the day of the accident it was taken out by the men to be put on the car, but after they reached their place of work it was discovered that they had no nut suitable for the purpose, and it was not put on. There was evidence introduced on behalf of the plaintiff to show that he had been ordered by his superior officer, Connors, on the morning of the accident, to take out the hand car without the brake. In the construction of the road temporary cattle guards were erected at the inclosures, consisting of bars across the track made of pine poles with the bark on. In going out to work on the morning of the accident the hand car without the brake went in front, with about 13 men, and the rest of the men with the other hand car followed. They passed through four sets of bars which had been put up as temporary cattle guards, and of which the men had previous knowledge. The seven men with the rear car stopped to put in a temporary cattle guard constructed with stringers and a pit, while the others with the car without the brake went on to build a bridge. At noon the men started on their return to camp for dinner, the car without the brake running in the rear. They went through the bars that they had passed through in the morning, and were running, according to different estimates given by several witnesses, from 8 to 12 miles an hour on a downgrade with a dump and rising grade in front of them, when the car in front ran into a set of bars on the dump which had been erected that morning, of which no notice had been given to the men, and of the presence of which they did not know. The men in front succeeded in stopping their car so that it struck the bars with only slight force, and no one on it was hurt, but the rear car ran violently into the car in front, and the plaintiff was injured by the collision. If the car upon which the plaintiff was riding had been equipped with a brake, it could have been stopped in time to have avoided the accident. There was evidence tending to show that the defendant was negligent in having the obstruction on the track, and in not warning the men of its presence. There was also evidence tending to show that the plaintiff was guilty of contributory negligence as alleged in the answer. Copies of the pleadings are here set out."

The honorable Court of Civil Appeals copied with the statement the pleadings and the entire charge of the court, but the certificate does not present any question based upon the pleadings, and involves only three paragraphs of the charge. We therefore omit the pleadings and all of the charge except the three paragraphs mentioned in the questions propounded.

"You are instructed that the plaintiff, while in the employment of the defendant, assumed as a matter of law all of the risks of injury that were ordinarily incident to the employment in which he was engaged; and if you believe from the evidence that his injuries, if any he received, grew out of a risk that was ordinarily incident to his employment, then your verdict should be for the defendant. But you are further instructed in this connection that by the use of the expression, `a risk ordinarily incident to the employment,' is meant a risk of injury that does not arise or grow out of an act of negligence on the part of the defendant or its servants, and that whenever a risk is created...