Appeal from District Court, Harrison County; Reuben A. Hall, Judge.
Suit by Claude Perkins against the Texas & Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals.
Affirmed.
The appellee brought the suit for damages for personal injuries, claiming that the sight of his right eye was destroyed as a result of the alleged negligence of a coemployee. The appellee and his coemployee were members of a section crew that were at work near Waskom ballasting the roadbed and realigning the rails of the main line track that appellant runs its trains over from Marshall, Tex., to Shreveport, La. The two men were shoveling gravel under the ties of the track, and then packing or tamping it. While the employee opposite appellee was packing or tamping the gravel under the tie in front of him a small stone or piece of gravel flew up and struck appellee in the right eye with force enough to destroy the sight of it. The petition alleged the following grounds of negligence: (1) "The employee opposite the plaintiff carelessly and negligently struck under the tie with his shovel, unnecessarily exerting great force and violence in said movement and striking the rocks in such manner as to force a piece of rock or gravel against and into the eye of the plaintiff," and (2) "that said employee working opposite the plaintiff did carelessly and negligently strike with great force and violence under the tie where the plaintiff was working with the shovel, and that because of said stroke with the shovel of such unusual violence and unnecessary force a piece of rock, ballast or other substance of some description was caused to strike the plaintiff in the eye." The defendant pleaded that the danger was open and obvious, and that the plaintiff knew, or in the exercise of ordinary care could have known, of the risk incident to performing the work, and assumed the risk of injury therefrom. The defendant further specially pleaded that the injury was the result (1) of an unaccountable accident, and (2) of a risk ordinarily incident to the employment.
The case was submitted to the jury on special issues, namely:
"No. 1. Do you find and believe from a preponderance of the evidence that Claude Perkins' eye was struck by a piece of gravel coming from the shovel of Robert Smith?" Jury answer: "Yes."
"No. 2. Do you find and believe from a preponderance of the evidence that Robert Smith was negligent in the manner in which he used his shovel at the time Claude Perkins received his injuries, if any?" Jury answer: "Yes."
"No. 3. Was the negligence of Robert Smith a proximate cause of the injuries received by Claude Perkins?" Jury answer: "Yes."
"No. 4. Was the work of placing or shoveling the gravel under the ties being done or performed in the usual and customary manner at the time the plaintiff was alleged to have received his injury?" Jury answer: "No."
"No. 5. Was the risk, if any, of being hit or struck by gravel that was being tamped
or shoveled under the cross-ties one of the risks ordinarily incident to the work in which plaintiff was engaged?" Jury answer: "No."
"No. 6. Was the risk or danger, if any, of the gravel flying or bouncing when being tamped or shoveled under the ties in the manner in which you may find from the evidence that the same was being tamped or shoveled under the ties open and obvious so that the plaintiff, Claude Perkins, in the exercise of ordinary care, should have known thereof?" Jury answer: "No."
"No. 7. Was the flying or bouncing of the gravel, and its striking the plaintiff's eye, in the manner in which you may find from all the evidence that it did fly or bounce and strike the plaintiff's eye, an unavoidable accident?" Jury answer: "No."
The amount of damages found by the jury was $4,000. The above findings have support in the evidence.
According to the testimony of Robert Smith, who was the employee tamping the gravel, the injury to the appellee occurred as follows: "At the time this accident happened we had the track jacked up and were putting washed gravel under it. We had the track raised two or three inches. The cross-ties run north and south, and the track (rails) runs east and west. We jacked the rails up so as to raise up the ties two or three inches. There was a lot of loose gravel that had been dumped and placed there for the purpose of putting it under the ties to raise up the track. We first put and filled the gravel under the ends of the ties after raising the ties, holding the rail so it would press against and hold the tie in position. After pushing the gravel up under each end of the tie it held the tie at the point or height where we wanted it, and that would leave a vacant space of two or three inches under the middle of the tie; and we would take the loose gravel and fill it up under the tie. That gravel had to be shoveled or pushed pretty hard to stay there and hold up the track. It was usual and customary to push it up under there and tamp it hard to hold the ties. It was usual and customary in doing that to use all our force to pack it under there. We used a shovel. * * * I was tamping the gravel on my side of the tie and Claude (plaintiff) was tamping the gravel on his side of the tie. We were all working on speed, and I made an awkward lick and my shovel kind of turned in my hand. In making that awkward lick some gravel flew up and Claude said, `Look and see what this is in my eye.' In making the awkward lick my shovel struck it and the gravel flew up. At the time Claude flinched and said `Oh! Look in my eye and see what is in it.' I looked in it and saw some grit. He said, `Look again.' I said, `There is nothing but a red place under the ball of your eye.' He continued to complain, and we went to a water-cart and poured water in it and washed it out. It was still red. At the time I made this awkward lick Claude was shoveling gravel under the tie. * * * I had almost finished my side of the work when Claude was hurt. By that I mean I had pushed the gravel under my side to where the gravel was about level to the top of the tie. The gravel was within about three inches from the top on my side. At the very time I made this awkward lick in shoveling the gravel I was tamping it there by the tie. * * * I was about three inches from the top. I continued to tamp it to keep it from getting slack. I was tamping it to the side of the tie. In order to tamp it...
