Texas N. O. R. Co. v. Murray

McKENZIE, J. This is a suit by W. J. Murray against the Texas & New Orleans Railroad Company to recover damages for personal injuries alleged to have been sustained while employed by defendant as section laborer in its yards in the city of Houston. A former appeal of this cause is reported in 182 S. W. 496. The petition upon each trial being the same, we refer to the reported cause, supra, for a fair statement of the plaintiff’s pleadings. The defendant answered by general denial, pleas of contributory negligence, assumed risk, and unavoidable accident. The trial from which this appeal is taken was had on June 22, 1911, and resulted in a verdict and judgment for plaintiff for $7,000. [1] The first assignment of error complains of the following charge of the court: “Although you may find that defendant was negligent towards plaintiff, and that such was a proximate cause of alleged injuries to him, as before submitted, yet, if you believe from the evidence that plaintiff, while engaged in assisting in the moving of the car, failed to properly hold and steady the car, or failed to look out and guard against the motion thereof, so as to avoid contact therewith, and that in either or both of these particulars he failed to exercise such care as an ordinarily prudent person would have exercised under the same or similar circumstances, and that he thereby contributed to the alleged injuries of which he complains, if sustained, then let the verdict be for defendant, but, if you do not so find, let the verdict be determined on the other issues submitted to you.” Appellant contends in its proposition that if the ■ plaintiff failed to properly hold or steady the car or to guard himself against the motion thereof, and his failure so to do caused the car to strike him upon the leg, then such failure was the proximate cause of his injuries, and it was therefore error for the court to submit the question of proximate cause to the jury. Under the assignment and proposition, appellant contends that the charge is practically correct but for the concluding part thereof, which is as follows : “But, if you do not so find, let the verdict be determined on the other issues submitted to you” — contending that the jury was instructed, in effect, to find for the plaintiff if plaintiff’s failure to properly hold and steady the car or to guard against the motion thereof did not contribute to the injury. We are of the opinion that the charge is not susceptible to the criticism as made. The words complained of only import what would have been implied without them (that is, if the jury did not find the facts to be as submitted in the charge, then they should look to the other part of the charge in arriving at their verdict); and, the charge given being an affirmative presentation of the issue to the jury of plaintiff’s contributory negligence, the jury could not have been misled thereby. [2] Appellant’s second assignment of error complains of error on the part of the trial court in refusing a special charge on the issue of contributory negligence, which special charge is in practically the same af•firmative terms as was submitted by the court in the general charge. We therefore overrule this assignment. The third assignment of error complains of the action of the trial court in failing to charge upon assumed risk. Upon the trial of the case appellee testified, in substance, as follows: “I had been working there for the railroad company at the time I got hurt I think, about three months, as well as I can remember; I had been working for the Texas & New Orleans at that particular job about three months; as to how far back from that time I had first commenced working for any railroad, I don’t remember, sir, to tell you the truth about it; I think it was a year or so before I commenced working for a railroad. I was not doing any skilled work, just lifting, laboring work. I had been working for this defendant, the Texas & New Orleans Railroad Company, about three months at that kind of business, working with a crew that was handling piling; and, in moving the piling from wherever it was to the place to be used, we used a push ear (that is, a small car with two trucks, or four wheels, with four handles, two on each end); when it is not loaded, when it has no load on it, it is a tolerable light ear, just has a light wooden frame on it over the truck. * * * When we got back to where we wanted to take it off of the railroad, the main track, we had a little track that came up for the purpose of taking it off and leading it into the house; this track approached the main track at right angles; when we got it off, we did not have any switch to run it on, and we four men would get hold of one of those handles and lift it up, turn it around, and put it on the other track and roll it into the house, and that was what we were doing to it, and in doing that it became necessary to turn the car half around, just back it up, carry it around to the other track, so as to set it down; we just picked it up like this, like two tracks; you come up on this one, you turn far enough to get on that one, just pick it up and turn; the track we were on ran east and west practically, the one we were working on, and at the time we approached the track we took it onto; we were going east, and I got hold of the northeast corner *596 of that corner, and that would compel me then, in making that trip around, to pass over one of the rails of the main track and reach one of the rails of that approaeliing track, and it would require Mr. Gibson, my assistant; he was the one on the same end of the car I was; he was on the northwest corner; he was at the same end, but the northwest corner; and he, in lifting there, would have to pass over the eastern rail of that track that approached the main track and reached the other to set it down, and that is what we were all doing at the time I got that first injury above the knee.” Gibson, a witness for appellee, testified: “At the time the accident occurred, Murray and I were taking a push car oft of the main line * * * and endeavoring to place the same on a track leading to a shop near by. * * * The car was at a place on the said track even with and directly in front of a track leading to a shop. * * * There were two other men besides Murray and myself engaged in moving the car; Murray was on one side at one end; I was on the other side, at the same end, and the two other men were at the other end of the ear. * * * track leading to the shop ¡ran in a direction almost at right angles to the main line track. * * * Each of us four men took hold of a corner of the car. The end of the car at which I was located had to be moved toward Murray, who was .at the same end of the car with me but on the other side of the same. This was necessary in order to point the car in the direction that the track was going to shop led. In carrying my end of the car around, I stumbled on one of the rails; this was ■caused by my not lifting my foot high enough, and my foot, as a result, hit upon the rail ■of the track. My stumble caused me to lose my balance and throw the car against Murray; my stumble caused me to throw the car against Murray. I knew the rail was there; there was no necessity of my hitting the rail with my foot; I did not lift my foot high enough to escape hitting the rail, because I was not thinking of it; I forgot to do so; it was carelessness on my part in not looking for the rail; I knew it was there. * * * We were handling the push car in the usual and customary way of doing so in removing it from one track to another. The car was not loaded. I did not intend to strike the rail with my foot; I just wasn’t thinking about or looking out for the rail.” The witness Dooley, who was helping in moving the push car at the time of the accident, testified: “In moving those push cars from one track to the other, as we were all doing, it Is frequent to stumble or slip and let the car drop that way. It is very frequently the case. * * * A man can stumble most any time when he is walking, even if he is not on the rails; he can stumble without being careless and by being careless.” The appellant asked a special charge, which was by the court refused, as follows: “You are instructed that the plaintiff, in entering and remaining in the service of the defendant railroad company, assumed the risk of dangers and injuries which were ordinarily incident to the service which he engaged to perform, and also the condition and dangers that were open to his observation and were actually known to him, or would necessarily have been known to him by the exercise of ordinary care in connection with the performance of his duties. Therefore, if you find from the evidence that the plaintiff’s alleged injuries were the result of risks or dangers that were ordinarily incident to the service, or risks and dangers which were known to the plaintiff, or would necessarily have been known to him before his injury by the exercise of ordinary care in connection with and consistently with the performance of his duties in the service, then, in such event, you will return your verdict in favor of the defendant railway company.” The testimony, therefore, shows that Murray had been engaged in the character of work he was doing for some time, was experienced, and had full knowledge as to the method in which the work was being done, and was participating in the work of moving the car at the time he received the injury complained of. The moving of the car as was being done was in the ordinary performance of the duties of that employment. No claim is made that the men helping Murray move the car were incompetent or that the car was in any manner defective. The ear was being moved in the ordinary way, and, from the position assumed by Murray, the car was required to be moved towards him that it might he placed upon the spur track leading to the shop, and this required some of the men to pass over the rails of the track while lifting the car. Murray must have known the effect that a misstep or a stumble by Gibson would have upon the car, and must have known the resultant danger thereof. It is a well-settled principle of law that a servant assumes all the risks which are naturally, ordinarily, and reasonably incidental to his employment. This principle is based upon the presumption that a person who enters a certain service understands its nature and understands and appreciates the dangers ordinarily incident thereto, and if he is injured by any risk ordinarily incident to the employment, or by reason of improper method of carrying it on in which he participates, he cannot recover. St. L. & S. W. Railway Co. v. Brisco, 100 Tex. 354, 99 S. W. 1020, was a case where a railway section hand sued for injuries by *597 the negligence of the other section hands engaged with him in putting a hand car on the track and in pushing the car upon him with unnecessary speed and violence; there being evidence that the work was being carried on in the usual manner, with which the plaintiff was familiar, and upon the_ trial of the case the defendant requested a charge upon the issue of assumed risk. In that case our Supreme Court said: “The court erred in not giving the charge set out in the statement submitted. There was evidence from which the jury might have found that the hand car was uniformly placed upon the track by giving it a hard push to get it over the first rail of the track. This was the method of doing the work, and they might also have found that Brisco was daily engaged in assisting them put the car on the track as he was engaged on that occasion, and knew of the manner in which his fellow servants .uniformly performed that work. The jury might have found that the car on this occasion was shoved as it usually was, and with no more force. The evidence is conflicting upon these issues; but the jury might have concluded that Brisco assumed the risk of putting the ear on the track in the manner in which it was done. One who is engaged in the performance of work in a manner well known to him must be held to assume the risks of danger which are involved in the performance of that work in that way. There was no conflict in the testimony as to the fact that Brisco had been engaged in performing this character of work (that is, putting the ear upon the track) for some time; that he was experienced and had full knowledge as to the method in which the work was done. He was participating 'in the work on this occasion, and the facts bring it within the rule laid down by this court in Gulf, C. & S. F. Ry. Co. v. Huyett [99 Tex. 630] 92 S. W. 454 [5 L. R. A. (N. S.) 669].” Experience common to everyday life teaches that men engaged in a work of lifting heavy objects, such as a push car, frequently make missteps or stumble. It teaches that ordinarily four men engaged in moving a car would not likely move in the same direction uniformly at the same instant. One corner of the car might be raised higher than some other corner, which would shift the weight to the lower corner; this might be because of the discrepancy in the natural height of the men, or the unevenness of the ground, or because of the lifting of the car over the rails of the track which project some distance above the ground. In passing over the rails the men are necessarily required to raise their feet higher than in ordinary walking. For any or all of said reasons, men engaged in the work are often placed in awkward positions which would cause them to make a misstep or stumble, which would seem to be a mere incident in the performance of that character of work. Certainly it could not be said that to stumble or make a misstep under the conditions enumerated would be unusual, unnatural, or unreasonable. As testified to by the witness Dooley: “It is frequent to stumble or slip and let the car drop that way. * * * A man can stumble most any time when he is walking, even if he is not on the rails. He can stumble without being careless and by being careless.” The testimony, when weighed in the light of the character of work being performed, raised the issue of assumed risk, a defense which should have been submitted to the jury under an affirmative-charge. The charge which was requested by the defendant upon the trial appears to us-to be correct, and should have been given, in the absence of any charge upon the issue of assumed risk in the main charge. The assignment of error is sustained. . We think the case at bar is very similar to Bailway Co. v. Brisco, supra. The negligence in that ease complained of was the acts of the servants in pushing the car with unnecessary speed and violence, which negligence is very similar to the negligence as disclosed by the testimony in the case at bar. We deem it unnecessary to consider the fourth and fifth assignments of error in view of the fact that the causé will be reversed and remanded for a new trial. Beversed and remanded.