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

• Court: Texas Court of Appeals
• Writing for the Court: Williams
• Citation: Texas & N. O. R. Co. v. Bingle, 29 S.W. 674, 9 Tex. Civ. App. 322 (Tex. App. 1895)
• Decision Date: 31 January 1895
• Parties: TEXAS & N. O. R. CO. v. BINGLE.

29 S.W. 674

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

Court of Civil Appeals of Texas.

January 31, 1895.

Appeal from district court, Liberty county; L. B. Hightower, Judge.

Action by W. L. Bingle against the Texas & New Orleans Railroad Company. From a

judgment for plaintiff, defendant appeals. Reversed.

Perrymann, Gillaspie & Bullitt, for appellant. Wheeler & Rhodes, for appellee.

WILLIAMS, J.

Appellee sued to recover for personal injuries received by him while acting in the capacity of fireman in defendant's service, in attempting to mount the engine, from which a step was missing. It was charged in the petition that the absence of the step rendered the engine defective and dangerous, and that the omission of defendant to supply it was negligence which caused the injury. It was admitted that plaintiff had known of the absence of the step for a few days before, as well as at the time, his injuries were received; but it was alleged that he had complained of the fact, and that defendant had promised to remedy the defect, and that upon this assurance he had remained in the service, using due care himself, and was injured as alleged. After verdict, a motion in arrest of judgment, on the ground that the petition stated no cause of action, was made and overruled, and one of the assignments presents this ruling as error. The proposition urged in support of this assignment is that "where an employé remains in the service of the employer after the discovery of anything in the machinery or appliances connected with the service affecting his safety, and rendering his employment more than ordinarily dangerous, he must inform the employer, or otherwise he assumes all the risks of increased danger; and, if the employer promises to repair in a reasonable time, the servant will not be held to have waived the defect or assumed the risk until a reasonable time has elapsed after the promise, but after such time has elapsed he assumes the danger." The rule that an employé who, without protest, continues in the service after he has learned, or by proper diligence should have learned, of a defect in machinery furnished for his use, assumes the risk resulting from such defect, is well settled. Where he simply protests, and, without any promise or anything said or done by the master to induce him to remain in the service in the confidence that repairs will be made, continues to use the defective thing, it seems to be settled in this state that the rule is not changed, and the risk is still upon the servant. Some authorities hold that, under this state of facts, the servant does not assume the risks, but that the question presented is simply one of contributory negligence, for the jury, whether or not, under all the circumstances, the risk known to the servant was so great that a person of ordinary prudence would not have incurred it. This view is, however, not adopted by our supreme court. Railroad Co. v. Drew, 59 Tex. 10. But where the servant complains to the master of the defect, and receives a promise that it will be removed, it is generally held that there is no assumption by the servant of the risk by a mere continuance of the use of the defective appliance. Railway Co. v. Drew, supra; Railway Co. v. Brentford, 79 Tex. 619, 15 S. W. 561; Railway Co. v. Donnelly, 70 Tex. 373, 8 S. W. 52; Railway Co. v. Williams, 82 Tex. 343, 18 S. W. 700; Southern Pac. Co. v. Leash, 2 Tex. Civ. App. 68, 21 S. W. 563; Railway Co. v. Turner, 3 Tex. Civ. App. 488, 23 S. W. 146; Hough v. Railway Co., 100 U. S. 214; Shearm. & R. Neg. § 96; Thorpe v. Railway Co. (Mo. Sup.) 2 S. W. 3; Railway Co. v. Watson (Ind. Sup.) 14 N. E. 721; Thomp. Neg. 1009; Whart. Neg. 220; Cooley, Torts, 559.

The reasons for this exception to the general rule have been variously stated, some authorities treating the promise of the master as an implied request to the servant to continue in the service until the repairs can be had, and as an assumption of the risk, and others regarding it as tending to exempt the servant from the charge of contributory negligence in exposing himself to danger. In this state the assumption of risk and contributory negligence are treated as distinct defenses. The servant may remain in the service when he knows of a defective condition of the appliances, without having negligence imputed to him by law. He nevertheless assumes the risk, unless the facts take his case out of the general rule, and bring it within the exception noted. On the other hand, a protest and promise to repair may be shown, and the servant may yet be guilty of contributory negligence in using a defective and dangerous machine. Green v. Cross, 79 Tex. 132, 15 S. W. 220; Railway Co. v. Somers, 78 Tex. 443, 14 S. W. 779; Railway Co. v. Bryant (Tex. Civ. App.) 27 S. W. 825. It would seem to follow that a promise of the master to repair, upon complaint by the servant, relieves the servant, in continuing in the service, not merely of the imputation of contributory negligence, for no such imputation arises as matter of law, but of any assumption of the risk, and hence imposes such risk upon the master; and, under our decisions, the reason why such a promise modifies the rule which charges the servant with risks resulting from defects of which he has knowledge is that the objection and promise to repair leave the risk where the duty is, upon the master. In view of the great number of decisions upon the subject, it is unnecessary to state the reasons upon which such effect is given to the promise of the master. As the risks to be incurred by the servant, under such circumstances, are not assumed by him, but by the master, the loss must fall upon the latter, unless the danger to the servant is so great that the policy of the...