Robinson v. Ft. W. R.G. Ry. Co. , 99 Tex. 110 ( 1905 )

Plaintiff in error recovered a judgment for injuries sustained by him while in the service of defendant in error, as he claims, through its negligence. The Court of Civil Appeals reversed this and rendered judgment in favor of defendant, expressing the opinion that no negligence on part of defendant was shown, but basing its action upon the grounds that if there was negligence on defendant's part, plaintiff had assumed the risk of those things in which he claimed it to have consisted, and was also guilty of contributory negligence.

This writ of error was granted under the belief that the evidence was such as to entitle plaintiff to a submission of all of these questions to a jury and that the Court of Civil Appeals erred in rendering final judgment. We have reached the conclusion, however, that the judgment was correctly rendered.

Plaintiff was a member of a bridge gang, of which one Brown was foreman, and was hurt while a bridge was being repaired. In plaintiff's absence, the deck, or part of the bridge above the stringers on which the cross ties rested, had been raised by means of a ratchet jack, and was in this condition when plaintiff came upon the scene and reported for work. The foreman, without informing him that the bridge was "jacked up," directed him to dig some holes in the ground near one of its ends, and plaintiff, in ignorance of the fact, although he could have seen the elevation had he looked at that part of the bridge, went under it and did as directed. While he was thus engaged the bridge was suddenly lowered by one of the employes and a descending cross tie struck him on the head. This was done by "tripping" the jack by means of the lever, so that the deck of the bridge was allowed to drop back into its former position. Before releasing the bridge in this way the employe operating the jack exclaimed, "look out for the drop," and, after a short interval, repeated the same warning and at once let the bridge fall. Plaintiff distinctly heard the signal and had time to have gotten out of reach of danger, either by stooping or stepping back a few inches, before the bridge fell, had he known the danger to be avoided. He says he did not think he was in any danger but thought that if the bridge was jacked up at the point from which the signal came this would not affect him, and that the warning was intended for others. The elevated ties were within a few inches of his eyes and he could have seen at a glance that the deck was separated from the stringers had he looked, but, paying no attention to the warning, he simply worked on.

The evidence establishes beyond dispute the facts that this work was done in the customary way; that the jack was of a kind commonly used for the purpose; that the warning given was the one usually employed to enable the workmen to get out of the way of the falling bridge; and that with all this plaintiff was familiar. It also appeared, however, that the words employed as a warning were habitually used, not only when a bridge was to be lowered, but when anything, such as tools, timbers, and the like, were to be dropped from a bridge; and it seemed to us when we granted the writ, that a jury might legitimately find that there was negligence in putting the plaintiff in such a position without notice of the condition of the bridge and of the intention to lower it, and in letting it down with no warning but one which did not necessarily inform him of the particular danger to be avoided; and that if he was confused and misled by the indefinite character of the signal, he was not necessarily chargeable with contributory negligence or assumption of risk. This was the theory of the case presented in the application, but we find it is not supported by plaintiff's testimony. He states unequivocally that the signal, whether given for one purpose or another, meant that all those under a bridge should go out, and the reason he gives for not doing so is, not that he expected something else to drop, but that he did not think he was in danger. He further shows that he thought of such a contingency as a fall of the bridge, and concluded that the drop would be at a place from which the signal came and not where he was. At the same time be could have seen by merely looking before or above him the condition of the bridge. In admitting that the warning here given was all that was usually given and that it meant for all to go from under the bridge, he, in effect, concedes that the defendant's other employes gave the only notice that was necessary or customary, and that he failed to act upon it on his own judgment that he was not in danger, and not because he did not know its significance. His injury is, therefore, as held by the Court of Civil Appeals, chargeable to his own mistake and not to the negligence of others.

Affirmed.