Citations
- 25 Tex. Civ. App. 99
Full opinion text
CONNER, Chief Justice.
For the purposes of this opinion the following statement taken from the brief of appellant is deemed sufficient:
“While appellee was on the side of an engine tank for the purpose of placing an oil can, he was caught between the side of the moving tank and a coal bin parallel with the track. He based his right to recover on the ground that the coal bin had been permitted to bulge out from its proper position, and that the engineer was guilty of negligence in starting the engine without warning and fast speed. The defense was general denial; that the plaintiff had long since known or ought to have known of the condition of the coal bin, and assumed the risk thereof, and eon-tributary negligence in assuming an unnecessarily dangerous position. The defendant pleaded the defense of assumption of risk and of contributory negligence in separate and distinct paragraphs of its answer. There was a verdict and judgment for the appellee for $10,000. Appellant’s motion for a new trial on the same grounds as are now assigned as error, was overruled. This appeal has been prosecuted in due course.”
There was evidence tending to show that the “bulge” in the coal bin projected to within 4j4 to 6% inches from the side of a passing tender dr engine tank, on the side of which, while passing, it would be obviously dangerous for a person to remain, that is, there is evidence from which the jury might have so found; that it had been permitted to remain in this condition five or six months, during which time appellee had passed it very frequently; that the engineer on the engine in question and other employes of appellant in and about the yards Imew of this condition, although appellee testified that he did not. It was appellee’s duty as fireman, among other things, to take from and replace in a box attached to the side of the tender certain oil cans containing supplies of oil with which to oil the engine. Going to and from the cab of the engine to this box it was necessary to take one or more steps beyond the cab upon a projection or projections along the side of the tender, and, while doing so, secure the position with one hand holding to its top. This duty was generally performed, however, at times when the engine was standing still. Appellee testified that on the occasion of the injury, while the engine was standing still, he stepped out in the manner detailed as necessary to replace an oil can, when the engineer suddenly and without warning started the engine along the track passing the coal bin, and with great speed ran the intervening distance, some 50 feet, by reason of which appellee was crushed between said ,acquired such knowledge, then he assumed the risk of said condition of the coal bin, and could not recover.” Which is not the law, but if it were, -the failure to embrace the proposition is only an omission.
The fourth complains of section “b” of the tenth paragraph of the ■charge, because it informed the jury that if the plaintiff knew of the condition of the coal bin, and of the danger of passing it as he did, yet that would not preclude him from recovering if he was exercising reasonable ■care for his safety at the time, but the fact of his knowledge might be considered in determining whether he was guilty of contributory negligence in remaining in the service of the company,” the law being that if he knew before the time of the accident of the dangerous proximity of the coal bin to the track, or might by the use of ordinary care have known •of such dangers and continued in his employment, he assumed the risk ■and could not recover.” The clause in italics points out that which is ■omitted from the paragraph, and the only objection the appellant makes to it. We have held time and again that a trainman assumes only the -risks of which he has knowledge, and that he may assume that the master will furnish him a good safe track and one clear of obstructions; and while the law raises the presumption that a servant will and ought to discover from use, within a reasonable time, the defects in a machine, tool or thing he works with, if open and obvious, yet no such presumption of knowledge can be indulged as to the defects and dangers arising out of extraneous objects and causes. Shearm. & Redf. on Neg., 4 ed., secs. 216, 217.
These are all the assignments and charges upon which we based our opinion of reversal, and it is manifest therefrom that the misdirection and confusion which we thought we found the appellant never found or complained of, and it is equally manifest that the only errors, if any, pointed out to the charge are errors of omission merely, and for these the appellate courts of Texas have refused to reverse judgments ever since' our judiciary was organized. I therefore conclude that the judgment of the District Court ought to be affirmed.
Motion overruled.