Hynson v. St. L. S.W. Ry. Co. , 39 Tex. Civ. App. 48 ( 1905 )

Appellant sued to recover of appellee damages for personal injuries alleged to have been sustained by appellant through the negligence of appellee's servants. Upon the trial the court instructed the jury to return a verdict for appellee, which was done, and this action is assigned as error.

The issues raised were, whether or not the railway company was negligent in failing to have all of its guard-rails blocked in the yards in Texarkana, in not having a coupling appliance in a reasonably safe condition, and in placing the guard-rail too far from the main rail, and whether or not appellant had assumed the risk and was guilty of contributory negligence.

The evidence tends to show that in the railway company's yards at Texarkana there were quite a number of switches, a part of which were blocked, but the majority of them were not blocked. The appellant was employed by said company as switchman in said yards, and had been working there for over seven months, and was perfectly familiar with the conditions there, as to part of the switches being blocked and part unblocked. Appellant was injured while trying to uncouple cars. The train was slowly moving. A chain which was used in connection with a lever, to uncouple cars, was disconnected, and the coupling pin could not be drawn by the use of the appliance, and appellant went in between the cars to uncouple, when his foot caught in the guard-rail, which caused the injury.

An employe has the right to assume that the master has furnished reasonably safe tools with which to work, and a reasonably safe place for the doing of such work, and is not required to assume the risk arising from the failure of the master to perform his duty, unless he knows of the failure and attendant risk, or, in the ordinary discharge of his own duty, must necessarily have acquired such knowledge. He is not required to use ordinary care to see that the master has provided proper tools or a proper place for the doing of the work. (Railway Co. v. Hannig, 91 Tex. 374.)

The foregoing announces the proper rule of law in regard to the assumption of risk by the employe. Applying it to this case, in regard to the question of blocking guard-rails, we think the appellant assumed the risk as to whether or not the appellee was negligent in not blocking all the guard-rails in the yard. The appellant was an experienced railroad man. He had been working as switchman in this yard for over seven months, and must be held to have known the condition of the switches there.

It must further be held that he assumed the risk of going in between the ends of the cars to uncouple the cars, and the negligence of the company, if any, to have the automatic coupler in proper condition, does not relieve him. Before going in between the cars appellant knew the automatic coupler would not work, and he knew the danger incident thereto. A rule of the company forbade his going in between the cars when moving, and, having violated the rule of the company, he assumed the risk. In Railway v. Keefe (11 Texas Ct. Rep., 966), in approving a charge, this court held that, where the employe violated a rule of the company similar to the one here, he assumed the risk of so doing. On this ground of alleged negligence appellant was not authorized to recover.

The third ground of negligence upon which appellant seeks a recovery is, that this particular guard-rail was farther from the main rail than is usual or proper in placing guard-rails. There is testimony by appellant showing that the straight or middle part of the guard-rail was three or three and one-half inches from the main rail, when it was shown by other evidence that the proper distance was two and one-fourth or two and one-half inches. The evidence fails to show at what point the foot was caught, whether near the end, where the guard-rail flares, or in the middle, where it runs parallel with the main rail. It is argued by counsel for appellee that the foot must have caught near the end of the guard-rail, and not in the middle, for if it was a sufficient distance for the foot to have gone in it was sufficiently wide for the foot to have been pulled out. It was shown that the sole of appellant's shoe was four inches wide. If the guard-rail was not properly placed, there is no evidence to show that appellant knew this, or that he should necessarily have acquired such knowledge in the discharge of his duty. Whether or not the shoe could have been pressed in and then extricated in time to prevent the injury is not so apparent as to admit of a peremptory charge that it could. We think the evidence raises an issue on this point which should have been admitted to the jury for their determination, and the court should have submitted it under appropriate instructions.

For this reason the judgment is reversed and the cause remanded.

Reversed and remanded.