Melton v. Texas N. O. R. Co.

LEVY, X (after stating the facts as above). Appellant’s propositions affirm that- the court erred in giving a peremptory instruction against him, because the evidence shows that the railroad company (1) failed in its duty to furnish him a reasonably safe place in which to work, and (2) failed in its duty to provide a sufficient number of employees to do the particular piece of work of unloading the ties to insure the safety of all engaged therein, and (3) through the foreman, as a vice principal, was guilty of negligence in specially ordering appellant to unload the ties from the car, and to work with the help of but one hand. Looking to the evidence of appellant, it is quite clear that his allege'd injuries were not proximately caused by his coworkers or by the failure to provide sufficient hands to do the unloading of the ties. Appellant testified: “We never did have more than two men engaged in handling one tie. * * * I don’t know exactly the weight of a creosoted tie, but about 200 pounds. I was accustomed to handling weighty things. I handled them ties, and have handled dry creosoted ties by myself. * * * I threw off two ties, and they were wet and slippery, and they slid off good. When I started to pull the third one out it was tighter than I thought, and I pulled harder, and then my foot slipped and off the car I went.” At the time of the fall he was sliding the ties off the top of the car to the ground, voluntarily doing the work alone and without the assistance of Fuquo, his coworker, assigned along with him to do the work. The “two men” always theretofore furnished “in handling one tie” at a time were there in appellant and Fuquo, his coworker. The foreman of the section crew did, it appears, direct the entire crew, which included appellant, to unload 125 cross-ties from the flat car standing on the side track. As appellant says: “Mr. Wade ordered us on top of the car to unload the ties. We all went right up on the carload of ties.” The order given by the foreman was the usual general order in the discharge of usual duties, and no specific directions were given as to the particular manner or method in which the ties were to be unloaded, except that Fuquo and appellant together would unload from off the tier of ties located on the north end of the flat car. The work of unloading ties from cars was a part of appellant’s usual work in his line of duty, and he was not put to work outside the scope of his employment As appellant testified: “I had been called upon by the foreman to do all kinds of work. We had unloaded six carloads of ties, and the car I fell from was the seventh.” It is not doubted that it is a rule of law that an employee has a right of action who is-injured by reason of the negligence of any person to whose orders he is bound to conform, and does conform, if his injury results from so conforming. But in this case the appellant was not injured in performing, or as a result of conforming to, a specific order, direction, or instruction of the foreman. He was acting under a general order or direction given with regard only to the general discharge of his duties. It was the usual and not the peculiar occurrence or work for appellant to unload cross-ties from a flat car. There is no uncertainty in the evidence *512 about the fact that appellant fell to the ground because his foot slipped due to the fact that the cross-tie on which he was standing was slick as a result of being creosoted. Appellant says: “The reason X fell off was that the ties were so slick with creosote- dip that I could not stand up.” The condition of the ties was a usual and normal one, and not an unusual or unexpected condition, flowing from the process of creosoting. The appellant was not unap-prised of such condition, for, as he says, he “noticed that the ties were wet and slippery” before the fall, when he went to “cut a wire on the southwest corner of the car.” Further, he knew that the ties were creosoted, for they “smelled like creosote.” Was the railroad company guilty of negligence iu haying the appellant unload creosoted ties from a flat car? It 'is the general rule that an employer owes to his employee a duty to make safe the place where he is required to perform his services, failing in which he renders himself liable to an employee who may sustain injuries as the proximate result of his neglect. But the rule does not extend ordinarily to the place where the conditions there necessarily involve certain risk ordinarily incident to the work. The instant case is within that exception. Here there was a usual risk ordinarily incident to unloading creosoted ties when standing on them. Appellant’s fall to the ground was entirely the result of the risks that are ordinarily incident to the risk of unloading creosoted ties, viz. he slipped on a wet and slippery tie of the kind he was unloading. There is no foundation in the evidence for a finding of negligence. Houston & T. C. R. Co. v. Alexander, 103 Tex. 504, 132 S. W. 119; Ebersole v. Sapp (Tex.) 208 S. W. 156. There being no negligence shown on the part of the railroad company, the court did not err in giving the peremptory instruction. The judgment is affirmed.