Olds v. Missouri, K. & T. Ry. Co. of Texas

WILLSOÑ, C. j. (after stating the facts as above). [1] The theory on which the trial court instructed the jury to return a verdict in favor of appellee was that the risk appellant incurred in undertaking to assist in moving the motorcar from the toolhouse to and placing it on the track was one he assumed, because it was an “open, obvious, and patent” one, and “necessarily incident” to service he had undertaken to perform. No doubt the theory was a correct one, unless the testimony would have supported a find337 lug that appellee, as charged in the petition, was guilty of negligence in failing to provide instrumentalities with which to do the work with reasonable safety. If the jury might have found that appellee was negligent, in that the means it provided for moving the motorcar to the track were defective and dangerous, when used, and appellant knew it, he nevertheless should not he held to have assumed the risk when he undertook the work, if appellee also knew of the defect, nor, if it did not know of it, unless a person of ordinary care, with knowledge of the defect and danger, would not have continued in the service of appellee. Vernon’s Stat. art. 6645: Pope v. Railway Co., 106 Tex. 52, 155 S. W. 1175; Railway Co. v. Hodnett, 106 Tex. 190, 163 S. W. 13; Railway Co. v. Shelton (Com. App.) 208 S. W. 915; Railway Co. v. Blackburn, 155 S. W. 625; Railway Co. v. Riden, 194 S. W. 1163; Swann v. Railway Co., 200 S. W. 1139; Thornhill v. Railway Co., 223 S. W. 490; Lancaster v. Johnson, 224 S. W. 207. Whether, therefore, the trial court erred when he instructed the jury as he did, depends upon whether the testimony authorized a finding that appellee was guilty of negligence in the respect stated. If it did, then clearly the case should have gone to the jury. The circumstances of the accident were not developed as fully as it seems to us testimony heard at the trial indicated they might have been. For instance, there was testimony from which, perhaps, an inference might have been drawn that a proximate cause of the accident was a failure on the part of men assisting appellant in moving the car to use care they should have used. Of course, if the accident was due solely to negligence on their part, appellant was not entitled to recover; for he did not charge negligence in that respect in his petition. We have concluded, however, that there was testimony which would have supported a finding that a proximate cause of the accident was failure of appellee, as charged in the, petition, to provide instrumentalities reasonably safe for use in moving the car from the toolhouse to the track, and that the trial court therefore erred when he instructed the jury as he did. The testimony we have in mind was that of appellant, set out in the statement above, that the ground from the toolhouse to the track was about 5 inches lower than the track, and that the space between the part of the cross-ties outside the rail was not filled in, but was a “skeleton track,” and that of the witness Henderson, indicating that instrumentalities other than those appellee had provided were necessary to avoid risk of injury to section men who undertook to move the car to the track. The judgment will be reversed, and the cause will be remanded to the court below for a new trial.