Texas & Pac. Ry. Co. v. Bryant

• Court: Texas Court of Appeals
• Writing for the Court: Tarlton
• Citation: Texas & Pac. Ry. Co. v. Bryant, 27 S.W. 825 (Tex. App. 1894)
• Decision Date: 19 September 1894
• Parties: TEXAS & PAC. RY. CO. v. BRYANT.

27 S.W. 825

TEXAS & PAC. RY. CO. v. BRYANT.

Court of Civil Appeals of Texas.

September 19, 1894.

Appeal from district court, Tarrant county; L. P. Greene, Judge.

Action by Frank Bryant against the Texas & Pacific Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

Stedman & Thompson, for appellant. Ben M. Terrell, for appellee.

TARLTON, C. J.

On and before October 20, 1890, the appellee was a brakeman in the employ of the appellant company. On the night of that day, while in the discharge of his duties, he was assisting in the unloading of freight on the platform of the depot of appellant at Eastland, Tex., and fell into a hole, thereby sustaining serious injuries. To recover damages for these injuries he brought this suit, alleging negligence on the part of the defendant in permitting the hole on the platform of its depot, and in failing to keep the premises properly lighted. On December 12, 1892, he recovered a verdict and judgment for $2,000, from which this appeal is prosecuted. The defendant pleaded the general denial, and answered specially that the existence of the hole in the platform was and had been known to plaintiff for several weeks; that plaintiff also knew of the absence of lights on the platform; and that it was his duty to carry a lamp when working around this and other depots at night; and, further, it interposed the defense of contributory negligence. There was evidence tending to show that the plaintiff knew of the existence of the hole, as alleged by the appellant.

The following paragraph of the court's charge is the subject of the first assignment of error: "A railroad employé is bound to use, in caring for his own safety while in such employment, such care as a man of ordinary prudence would exercise under like circumstances. In entering the services of a railway company he assumes all the ordinary risks incident to his employment, among which is the risk of any injury that may result to him from working in a place which he knows to be in such an unsafe condition as would render it probable to a man of ordinary prudence that to work there would be attended with danger; and should he go upon or into such a place, knowing it to be unsafe, he is bound to use all the care which a man of ordinary prudence would exercise under like circumstances, and prevent injury to himself." This instruction is complained of "because it confounds the distinction between an assumed risk and contributory negligence, to the prejudice of defendant, inasmuch as defendants' contention is and was that the hole in the platform was an obvious defect,...