Galveston, H. H.R. v. Hodnett , 155 S.W. 678 ( 1913 )

In the majority opinion granting a rehearing and affirming this cause it is held that assumed risk as modified by the act of April 24, 1905 (article 6645, Revised Statutes 1911), is no longer available as a plea in bar since the passage of the Employer's Liability Act (article 6649, Revised Statutes 1911). This upon the theory that in the case of Railway Co. v. Mathis, 101 Tex. 342, 107 S.W. 530, it was said by our Supreme Court that the effect of the article 6645, supra, was to merge assumed risk arising from knowledge of a defect and the danger incident thereto into a question of contributory negligence, and that under article 6649, supra, contributory negligence was made no longer a defense as a bar to a recovery, but may be urged for the purpose only of diminishing the amount of damages.

I cannot agree to the process of reasoning as shown in the opinion on rehearing. In the first place, it only requires the reading of the facts in the Mathis Case, supra to convince one that the facts in that case did not involve the application of article 6645, supra. In Railway Co. v. Grenig, 142 S.W. 135, cited in the majority opinion on rehearing, an examination discloses the fact that the requested charge which the trial court refused upon the issue of assumed risk ignored absolutely the provisions of article 6645, supra, and should have been refused because of that fact. Prior to the passage of the act of April 24, 1905 (article 6645, supra), the defenses of assumed risk and contributory negligence were distinct and independent of each other. In my opinion they yet remain distinct and independent of each other. As said in Railway Co. v. McHale, 47 Tex. Civ. App. 360, 105 S.W. 1149: "It is often difficult to distinguish between assumed risk and contributory negligence when the law applicable to these distinct defenses is sought to be applied to the facts of a particular case. Whenever one is consciously negligent in the doing of an act or in the failure to act, he might be said to assume the risk of such negligence, but this is not assumed risk as that term is used in the rule of law which exempts the master from liability for injury to the servant due to a cause ordinarily incident to the service in which he is engaged, or from injury due to the dangerous condition surrounding the service, of which the servant had notice, or in the exercise of ordinary care should have known. One may be so careful as to be entirely free from negligence in the manner in which he performs his work, and yet, because of the danger necessarily incident to the work, or due to conditions within his knowledge, or of which he must have known had he exercised ordinary care, he cannot recover for injuries while in the performance of such work on the ground that he has assumed the risk of such injuries." So it is recognized that the defense of assumed risk rests on the fact that a servant voluntarily exposes himself to danger and thus assumes the risk thereof, while the defense of contributory negligence rests on an omission of duty on the part of a servant, and is available, though the master was negligent where the proximate cause of the injury was the servant's negligence. The two defenses are based, therefore, upon different principles of law, and by article 6645 limitations or conditions are made by the statute which limitations or conditions are provisions stating when assumed risk is not available as a defense, but, subject to the limitations or conditions therein stated, the principle of assumed risk, as heretofore announced, is left intact, and I do not understand that the statute undertakes to abolish the defense when the conditions as named in the statute are not present which would eliminate it as a defense. Assumed risk as a defense does not partake of the principle of contributory negligence, and for that reason when the defense of assumed risk is available it is not contributory negligence, and, not being contributory negligence, article 6649 would not be applicable.

The original opinion properly disposes of this cause, according to my views of the law, in that it is admitted in the original opinion, and in the majority opinion on rehearing, that the charge of the court upon the question of assumed risk as applicable to the cause under article 6645 was incorrect, and being incorrect, in that it placed a greater burden upon the defendant than was authorized by said last-named article, the case should be reversed and remanded for a new trial.