159 S.W. 132 | Tex. App. | 1913
It is in effect conceded, as indeed we think it must be, that the evidence raised the issue of a negligent origin of the fire; but, as stated to us on the submission, the court upon the authority of the case of Seale v. G., C. S. F. Ry. Co.,
In a further consideration of the case, however, we think we must announce a different conclusion. Whenever the evidence reasonably authorizes an inference *134
supporting a material issue necessary for a recovery, it is the duty of the court to submit the issue to the jury. And the issues of a defendant's negligence, and the proximate cause of an injury on account of which a recovery is sought, are in almost every case questions for the jury. They never become questions of law for the court alone, when there is evidence of probative force in support of the issue. See Choate v. S. A. A. P. Ry. Co.,
The question then is, is there any evidence fairly raising an inference of negligence on the part of appellee's servants in ordering H. C. Bennett into the fire, and if so, whether such negligence was a proximate cause of his ultimate death? We think the evidence does raise these issues, and that hence they should not have been taken away from the jury by the court's peremptory charge. Appellants insist that the petition upon which the trial proceeded was sufficient to charge negligence in permitting the deceased to remain subject to the intense heat as long as he did, but we hardly feel prepared to adopt this construction of the petition. It is, however, plainly alleged, and there was evidence tending to show that the deceased was inexperienced in fighting fire; that the fire was raging furiously, and the heat very great, when one of the appellee's servants, whose command it was the duty of the deceased to obey, ordered him to enter a superheated and flame-swept area and endeavor to quench and prevent a further spread of the flames; that at the time of this order no warning was given him other than that he should come out when he got too hot; that after the deceased's entrance within the influence of the heat cold water was thrown upon him, which, it is true, experienced fire fighters testified was proper, yet which, perhaps, also, as appellant alleges, served to deceive Bennett, and caused him to remain until he received injuries from the fire and inhaled the smoke and flame, ultimately resulting in his death. The circumstances recall the Bible story of Nebuchadnezzar's rage as recited in the third book of Daniel, over the refusal of three young Israelitish men to observe his command. It is said that he directed his servants to heat a furnace "seven times more than it was wont to be heated," and commanded the most mighty men of his army to bind and cast into the fiery furnace the young Israelites, and it is further said that "therefore, because the king's commandment was urgent, and the furnace exceeding hot, the flame of the fire slew those men that took up Shadrach, Meshach and Abednego." Can it be said as a matter of law that the Babylonian king, in commanding as he did, was duly mindful of the welfare of his servitors? Or that the command was not a proximate cause of the death of those who approached the furnace near enough to cast therein the young men who had so offended the king?
The principles of law to be applied are familiar, and need no citation of authority. It is the duty of the master to exercise at least ordinary care to provide his servant with a reasonably safe place to work, and not to expose him to unknown and unappreciated hazards. It is true the servant is held to assume dangers that are obvious, or of which in the necessary discharge of his duties he must know, but he does not assume, without due warning, unknown and unappreciated dangers. As stated, the evidence tends to show that Bennett was without experience in fighting fire. He, of course, knew that the fire would burn if he came in contact with it, but he may not have known the danger involved in entering and remaining as long as he did in the intense heat within which he was ordered, especially in view of the circumstance that the heat was rendered less obvious by the constant application of cold water. The evidence tends to show that the deceased was a trusted employé, and that he was faithful is evidenced by the fact that he strenuously continued in the effort to save his master's property until he was inflicted with his death injuries. We think it was for the jury to say whether, under all of the circumstances the master was guilty of a want of due care or negligence in so ordering, without warning, the deceased to enter the place that he did.
We are also of the further opinion that it should have been left to the jury to determine whether the negligent command of the master was, under the circumstances, the proximate cause of Bennett's injuries. The general rule is that "when a defendant has violated a duty imposed upon him by the common law, he should be held liable to every person injured, whose injury is the natural and probable consequence of the misconduct, and that the liability extends to such injuries as might reasonably have been anticipated, under ordinary circumstances, as the natural and probable result of the wrongful act." Seale v. G., C. S. F. Ry. Co., supra,
We should, perhaps, add that we have not discussed any supposed defense of assumed risk or of contributory negligence on the part of H. C. Bennett, for the reason that, under title 115, c. 14, of the Revised Statutes of 1911, contributory negligence is in no event an absolute bar to recovery, and an assumed risk is not a defense in cases where a person of ordinary care would have continued in the service with a knowledge of the defect and dangers. These are issues, therefore, that may or may not be important upon a trial, but have not been deemed to be so, under the evidence before us, for the purpose of the present decision.
We conclude that the court erred in taking the case from the jury and giving the peremptory charge he did. It is accordingly ordered that the judgment be reversed, and the cause remanded for a new trial.