Texas & New Orleans Railroad v. Kelly

BROWN, Associate Justice. This is a certified question from the Court of Civil Appeals of- the First Supreme Judicial District. The statement and questions are as follows: “The action was brought by Bernard R. Kelly against the Texas & New Orleans Railroad Company to recover damages for personal injuries received by Kelly while he was in the employment of the company, resulting, as alleged, from its negligence. The petition showed that the plaintiff was at work for the defendant as the foreman of a gang of men in the construction and extension of its line of railroad from Rockland to Cedar, in Nacogdoches County; that while riding on a hand car about noon March 13, 1901, going from his place of work to his camp for dinner, he ran into an obstruction upon the track and was seriously injured. The alleged acts of negligence on the part of the defendant were that it erected and permitted to remain across the track a dangerous and hazardous obstruction consisting of heavy poles, and did not warn the plaintiff of its presence. The defendant answered by general demurrer and general denial, and special pleas in bar of facts to show assumed risk and contributory negligence. One of the facts alleged was that the plaintiff was using a hand car that he knew to be defective in that it was without a brake. In a supplemental petition the plaintiff admitted that the hand ear he was using was defective in the respect alleged, and pleaded that he had been directed to use it by a superior officer. A supplemental answer was filed by the defendant demurring to the supplemental petition, and denying its allegations of *133 fact. After the court had overruled the demurrers the cause was tried by jury and resulted in a verdict and judgment in favor of the plaintiff for $30,000. “At the time he received the injuries complained of the plaintiff was in the employment of the defendant as foreman of a bridge gang and was working near the town of Nacogdoches in the construction of the extension of the defendant’s railroad from Rockland to Cedar. The company was building its track north from Rockland and had reached a point near Nacogdoches; but that part of the road had not been finished, and trains were running only as far as Huntington, several miles south of the place of the accident. The track over which the plaintiff was riding when he was injured had been constructed only two or three days. It had not been surfaced up and was in an unfinished condition, and had not been turned over to “the proper department for the operation of trains. As foreman the plaintiff had charge of a gang of men in camp about three miles south of Nacogdoches, and working between the camp* and that town. On the morning of the accident, March 13, 1901, he went out to work with twenty men to fix a cattle-guard and build a bridge, using two hand cars furnished by the company for the transportation of the men and tools. One of the hand cars had no brake on it and had been in that condition for about two weeks. It was the plaintiff’s duty to repair the car and he had made a brake for it on the day before the accident, and on the morning of the day of the accident it was taken out by the men to be put on the car, but after they reached their place of work it was discovered that they had no nut suitable for the purpose and it was not put on. There was evidence introduced on behalf of the plaintiff to show that he had been ordered by his superior officer, Conners, on the morning of the accident to take out the hand car without the brake. In the construction of • the road temporary cattle-guards were erected at the inclosures consisting of bars across the track made of pine poles with the bark on. In going out to work on the morning of the accident the hand car without the brake went in front with about thirteen men and the rest of the men with the other hand car followed. They passed through four sets of bars which had been put up as temporary cattle-guards and of which the men had previous knowledge. The seven men with the rear car stopped to put in a temporary eattlé-guard constructed with stringers and a pit, while the others with the car without the brake went on to build a bridge. At noon the men started on their return to camp for dinner, the car without the brake running in the rear. They went through the bars that they had passed through in the morning and were running, according to different estimates given by several witnesses^ from eight to twelve miles an hour on a down grade with a dump and rising grade in front of them, when the car in front ran into a set of bars on the dump which had been erected that morning, of which no notice had been given to the men and of the presence of which they did not know. The men in front succeeded in stopping their car so that it struck the bars with only slight *134 force and no one on it was hurt, but the rear car ran violently into the car in front and the plaintiff was injured by the collision. If the car upon which the plaintiff was riding had been equipped with a brake it could have been stopped in time to have avoided the accident. There was evidence tending to show that the defendant was negligent in having the obstruction on the track and in not warning the men of its presence. There was also evidence tending to show that the plaintiff was guilty of contributory negligence as alleged in the answer. Copies of the pleadings are here set out." The honorable Court of Civil Appeals copied with the statement the pleadings and the entire charge of the court, but the certificate does not present any question based upon the pleadings and involves only three paragraphs of the charge. We therefore omit the pleadings and all of the charge except the three paragraphs mentioned in the questions propounded. “You are instructed that the plaintiff, while in the employment of the defendant, assumed as a matter of law all of the risks of injury that were ordinarily incident to the employment in which he was engaged; and if you believe from the evidence that his injuries, if any he received, grew out of a risk that was ordinarily incident to his employment, then your verdict should be for the defendant. But you are further instructed in this connection that by the use of the expression risk ordinarily incident to the employment’ is meant a risk of injury that does not arise or grow out of an act of negligence on the part of the defendant or its servants, and that whenever a risk is created by an act of negligence on the part of a railroad company or its employes, this is not a risk ordinarily incident to the employment." “You are instructed that the undisputed evidence in this case is that the hand car did not have a proper and sufficient brake. If you believe from the evidence in this case in this connection that the plaintiff, Barney Iielfy, was guilty of contributory negligence, as that term has heretofore been defined and explained to jou, in using the hand car at the time and place and under the circumstances alleged by him in his petition, then your verdict should be in favor of the defendant. You are instructed in this connection, however, that if you should believe from the evidence that the plaintiff’s superior officer directed him to use the hand car without a brake, then you are further instructed that unless the danger of using said hand car in that condition was so apparent that an ordinarily prudent man would not have used the same under the same or similar circumstances, the plaintiff would not be guilty of contributory negligence in that respect. But if you should believe from the evidence that the plaintiff was instructed by his superior officer to use the hand car without the brake, and if you believe from the evidence that the' danger of using the hand car at the time and place, and under the circumstances as alleged by the plaintiff in his petition, was one of such apparent danger that an ordinarily prudent man would not have used the same under the same or similar circum *135 'stances, then your verdict should be in favor of the defendant railroad company, or if you believe from the evidence that plaintiff used the said hand car in a negligent manner, and by reason of negligence plaintiff was injured, then you will find for defendant, although you may believe the defendant was guilt)' of negligence.” • “If you believe from the evidence in this ease that the plaintiff, of his own fault, permitted his crew to operate the hand car at a too rapid rate of speed, or in too close proximity to the hand car in front of him, or that he violated any rule or usage of the defendant in the operation of said car as alleged by the defendant, and was guilty of contributory negligence, as that term has heretofore been defined and explained to you, in any of these respects; or if you believe from the evidence that he occupied a position on said hand car whereby he or his limbs were exposed to injury, and that in this respect he was guilty of contributory negligence; or if you believe from the evidence that the plaintiff neglected to keep a proper lookout along the track over which he was riding, ■ to discover obstructions upon said track, and in this respect was guilty 'of contributory negligence, as that term has been heretofore defined, then in either, each or all of these alternative events your verdict should be in favor of the defendants.” ■ “The questions certified for the decision of the Supreme Court arise upon the action of the trial court in giving and refusing instructions to the jury, and are as follows: “1. Did the trial court err in the ninth paragraph of the charge ? “2. Did the trial court err in refusing to give the jury special in- , struction number 12 requested by the defendant, as follows: ■ ‘“You are charged that if, under the evidence in this case, you believe that the plaintiff, B. R. Kelly, was in a position to know and realize the dangers, if any, of using the hand car in question in the condition in which it was at the time of the accident, then in that event, even though you should find that George Connors was his superior officer, and should further find that the said Connors directed him to place said hand car upon the track and to go to his work, still the said B. R. Kelly would assume such risks, if any, as were incident to the use of said hand car in its then known condition, and if his injuries, if any, were the result thereof, then he will not be entitled to recover in this case, and your verdict should be for the defendant company ?’ “3. Did the trial court err in the tenth paragraph of the charge? “4. Did the trial court err in refusing to give to the jury special instruction number 11 requested by the defendant, as follows: “ ‘You are charged that if you believe from the testimony that the plaintiff, B. R. Kelly, permitted the hand car upon which he was riding to be operated at the speed of ten or twelve miles per hour, down grade, over a newly constructed track, without a brake upon it, and from fifty to one hundred yards in the rear of another hand car, and that such action on the part of said Kelly was negligence, as that term has heretofore been defined to you, which proximately caused or contributed to *136 the injuries of which he complained, then and in that event, your verdict should be for the defendant railroad company.’ “5. Did the trial court err in the fifth paragraph of the charge ?” Answer to the first question: There was no reversible error in giving the ninth paragraph of the court’s charge. The plaintiff in error objects to this charge, first, because it restricts the jury in 'considering, the question of the apparent danger of using the hand car to “the time, place and circumstance alleged in the plaintiff’s petition.” Plaintiff in error, however, fails to show that there were any other circumstances which surrounded the party materially different from those alleged in the petition by which the act of the plaintiff would be shown to be negligent. In other words, there is nothing shown in support of the objection which indicated that any injury resulted from the unnecessary use of the language objected to. Plaintiff in error further objects to the charge because of the language, “you are instructed in this connection, however, that if you should believe from the evidence that the plaintiff’s superior officer directed him to use the hand car without the brake, then you are further instructed,” etc. If, knowing its condition, Kelly had used the defective hand car without any order of his superior officer to do so, but it appeared that under like circumstances a reasonably prudent man would have made the same use of the car, he could not be charged with contributory negligence, but the charge imposed upon Kelley the duty to show in addition that he was, at the time, acting under the order of a superior officer in order to exonerate him from the charge of contributory negligence. Howard Oil Co. v. Farmer, 56 Texas, 301. If the language of the charge were susceptible of the construction placed upon it by the plaintiff in error, it would not be erroneous, for the order of the superior would be a pertinent fact to go to the jury on the question of whether the subordinate, who acted in obedience to such order, was guilty of contributory negligence. Central Railroad Co. v. De Bray, 71 Ga., 420; Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich., 211; Norfolk & W. Ry. Co. v. Ampey, 93 Va., 108; Illinois Steel Co. v. Schymanowski, 162 Ill., 459; Moline Plow Co. v. Anderson, 19 Ill. App., 419. It is also objected to this charge that it assumes the existence of the fact that Kelly operated the hand car as alleged in his petition. We do not think that the jury could have understood that they were restricted by this language to the consideration of the allegations of the petition alone, for in other parts of the charge the court instructed the jury very carefully with regard to contributory negligence on part of Kelly. Answer to the second question: The requested charge which was. refused ignored the proposition that although Kelly might have been guilty of negligence in operating the hand car without a brake, or might have assumed the risk incident to the defects in the car itself, yet if the *137 accident was caused by the negligence of the defendant railroad company in placing obstructions upon its track and failing to warn its employes of the fact, still Kelly could have recovered for the injuries suffered by reason of such negligence. In no event did Kelly assume the risk of a condition caused by negligence of the railroad company which was independent of and disconnected from the defects in the hand car itself. Missouri Pac. Ry. Co. v. Somers, 78 Texas, 442; Richmond & D. Ry. Co. v. Rudd, 88 Va., 651. In Railway v. Somers, before cited, Chief Justice Gaines said: “Because a servant knows of one defect he does not take the risk of another of which he has no knowledge, and if both contribute to injure him, he is entitled to recover, provided but for the unknown defect the accident would not have happened.” The charge was properly refused. Answer to the third question: The charge submitted by this question was for the defendant—each hypothesis demanded a verdict for defendant. The railroad company presented a special charge upon the same points, which was given. There was no error in giving the charge. Answer to the fourth question: The facts grouped in the special charge, refused by the court, were all embraced in and submitted to the jury in the tenth paragraph of the court’s charge and in a special charge asked by the defendant and given by the court. The only differences between the charge here under consideration and those given by the court are, that the speed of the car is here stated at “ten to twelve miles per hour” and the distance between the two hand ears is given at “fifty to one hundred yards,” whereas, in the charge given, the distance between the cars is stated as being “too close proximity” and the speed of the car as being “too rapid rate of speed.” The refused charge also includes the fact that the road was rough and newly constructed, but we do not regard these differences as being of any importance; the charges given covered fairly every phase of the facts. The court rightly refused this charge. Answer to the fifth question: There was no error in giving the fifth paragraph of the court’s charge. It correctly defines “risks incident to the employment” assumed by one entering the service of a railroad company, and, in doing so, correctly informed the jury that a risk arising from the negligence of the master or his servants is not “ordinarily incident to the employment,” but it is not said that such risk, when known to the employe, is not assumed, as counsel for plaintiff in error seem to think. In another paragraph of the charge the court instructed the jury, at the request of the railroad company, that “the employe is deemed in law to have assumed * * •* such risks as he knows of, or would, in the exercise of ordinary care in the discharge of his own duties, have known of.” The subject was well covered by the charge given.