TEXAS & PACIFIC RY. CO. V. HARVEY
| Citation | 228 U. S. 319 |
| Decision Date | 14 April 1913 |
| Court | United States Supreme Court |
ERROR TO THE CIRCUIT COURT OF APPEALS
FOR THE FIFTH CIRCUIT
In Texas, the common law rule as to risks assumed by the employee has been qualified by statute so that the employee is relieved from giving notice of defects where a person of ordinary intelligence would have continued in service with knowledge of such defect.
Ordinarily, and unless so evident that fair-minded men could not differ in regard thereto, negligence or contributory negligence is not a question of law, but of fact, to be settled by the finding of the jury. Richmond & Danville R. Co. v. Powers, 149 U. S. 43.
In this case, the court having charged that there could be no recovery if there was contributory negligence on the part of the deceased and also having specially charged that there could be no recovery if the deceased was not acting with the care of an ordinarily prudent man, there was no error.
The appellate court is not a jury, and has no power to grant a new trial. That matter rests in the sound discretion of the trial court, and, in a case of this kind, its decision cannot be disturbed unless it appears that contributory negligence was so evident that it became a question of law requiring the court to take the case from the jury.
184 F. 990 affirmed.
The facts, which involve the validity of a verdict against a railway company for damages for causing death of an employee, are stated in the the opinion.
This case comes to this Court from the Circuit Court of Appeals for the Fifth Circuit because The Texas & Pacific Railway Company is a federal corporation. The action was brought by Amanda Harvey to recover for the death of her son, W. S. Harvey, occasioned by the negligence of the Railway Company while he was in its employ. The judgment against the Railway Company entered by the United States Circuit Court for the Eastern District of Texas, to which court the case had been removed, was affirmed by the circuit court of appeals.
The Railway Company maintained a roundhouse at Marshall, Texas, which was constructed in a crescent form, having near the entrance a turntable. Numerous tracks coming from the roundhouse converged at the turntable, the narrowest point within the roundhouse being at the entrance. A number of posts, serving to support the roof, were located at the entrance to the roundhouse, and the locomotives, in going into and coming from the roundhouse, passed between such posts, a large locomotive, the testimony tends to show, passing within four or five inches of the posts. It appears that, on the day of the injury, one McGilvery served as hostler in and about the roundhouse; that Harvey, the deceased, was employed as a hostler's helper, the regular helper of one Rix, and that one George was also a hostler's helper regularly of one Adams, but on that day serving with McGilvery, who was taking the place of Adams in his temporary absence. It also appeared that a hostler took the place of an engineer, and that it was customary for a hostler's helper to get upon an engine, to give and receive signals, and for that purpose to look out of the cab window, to throw and set switches, to accompany the engine to the coal chute and water tank, to supply it with coal and water with a view to its going upon the road, and to otherwise
assist the hostler in his work, and, further, that frequently one helper would assist another helper because the appliances at the chute were heavy and difficult for one man to operate. On the day of the accident, the testimony discloses, Harvey got upon the engine and took a seat in the cab window on the left side, his hips protruding somewhat over the sill, and George took a similar position, beside Harvey and on the latter's right, on the same side of the engine. McGilvery got upon the engine on the other side, where he could not be seen by Harvey because of the boiler. All three having got upon the engine to coal and otherwise prepare it for the road, McGilvery started the engine out of the roundhouse. It had gone but a few feet when Harvey was crushed between the post and the casing of the cab window in such manner that he was fatally injured and shortly died. George, sitting in the same posture, but less exposed, passed the post unhurt.
The negligence charged is the failure of the Railway Company to provide a safe place to work, and that the posts were so placed as to make it dangerous to use the locomotive in passing them. The question of the Railway Company's negligence was submitted to the jury in a charge to which no objection in this respect was taken, and the case is brought here because of the rulings made in the trial court and affirmed in the circuit court of appeals concerning the defenses, on the Railway Company's behalf, of assumed risk and contributory negligence. At the common law, a servant assumes the ordinary risks of his employment, but he is not obliged to pass upon the methods chosen by his employer in discharging the latter's duty to provide suitable appliances and a safe place to work, and he does not assume the risk of the employer's negligence in performing such duty. This rule is subject to the exception that, where a defect is known to the employee or is so patent as to be readily observed by him, he cannot continue to use the defective
appliance, in the face of knowledge and without objection, without himself assuming the hazard incident to such a situation. If a defect is so plainly observable that the servant may be presumed to know its existence and he continues in the master's employment without objection, he is said to have made his election to thus continue notwithstanding the master's neglect, and in such a case he cannot recover. Choctaw, Oklahoma &c. R. Co. v. McDade, 191 U. S. 64; Schlemmer v. Buffalo &c. Ry. Co., 220 U. S. 590, 596.
In Texas, however, where this accident happened, the rule of assumed risk has been qualified by statute. The statute of April 24, 1905, Gen.Laws 1905, c. 163, p. 386, is as follows:
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