149 S.W.2d 1079 | Tex. App. | 1941
A. D. Crews sued the Texas Pacific Railway Company for damages alleged to have been sustained in a fall from defendant's engine while he was lubricating it in the nighttime in defendant's roundhouse yards at Baird. Plaintiff alleged he was an assistant hostler and that it was his duty when the engine, from which he fell, came into the yard to take a gallon can of hot oil, climb the side of the engine, with a flashlight in one hand and the oil in the other, and, clinging to the side of the engine, pour the oil into the lubricator. That the place at which he was required to climb the engine and lubricate it was dark; that defendant at its other roundhouses usually furnished a stool upon which the assistant hostler could stand, and that the defendant on this occasion should have furnished plaintiff a hostler's stool, or ladder, or similar device, to assist him in climbing to the point on the engine where he was to lubricate it and on which he could stand while he was performing his work. That defendant failed to furnish a hostler's stool, or similar device; that such failure was negligence and the proximate cause of plaintiff's injury.
Plaintiff alleged that prior to his injury he requested defendant to furnish a hostler's stool; that defendant promised to provide it; that plaintiff depended upon such promise and continued to work for defendant until May 17, 1939, when he was injured; that if defendant had refused to furnish such stool he would not have continued to do said work. "That in such awkward position plaintiff slipped off the guide yoke step, and, losing his hold, fell to the ground." There followed allegations of resulting injuries. Plaintiff alleged that defendant's failure "to furnish proper and safe support upon which to work while lubricating the engine" was negligence and the proximate cause of his injuries.
Defendant's answer, among other things, alleged contributory negligence; that plaintiff's negligence was the sole proximate cause of his injuries; that defendant was engaged in interstate commerce; that plaintiff's injuries were due to risks assumed by him; that he had full knowledge of all the matters and things alleged by him in his petition as constituting negligence; that such things were open and obvious, and well known to plaintiff, and plaintiff appreciated the danger arising therefrom; that plaintiff continued in the employment of the defendant with such knowledge and appreciation of danger, and, therefore, assumed all risks of injury arising therefrom.
At the close of the plaintiff's testimony, the court instructed the jury to return a verdict for defendant, which it did, and judgment was entered for defendant. Plaintiff has appealed.
Plaintiff says the court instructed the jury to return a verdict for the defendant upon the theory that the evidence showed as a matter of law that plaintiff assumed the risk.
It was agreed defendant was engaged in interstate commerce at the time of his injury.
Plaintiff's testimony was to the effect that he had worked for defendant "off and on" since 1923; that he had worked as assistant hostler for defendant at Big Spring and Baird. That his duties required him to fill the lubricators with valve oil and to supply the engine with fuel oil, water and sand in order to get them in shape to go out on the road; that the cans furnished by defendant to plaintiff to carry hot oil to the engine were one-gallon cans. That the place on the engine where the oil was put in was 7 1/2 or 8 feet from the ground. To fill the lubricator with hot oil required climbing up and down the side of the engine three times. He was asked how high his feet were off the ground at the time he was attempting to pour oil in the engine. He answered: "My right foot was approximately 2 foot and a half or three foot from the ground." He said that the ground there was sloping and rocky. He described the method of ascending the engine for the purpose of lubricating it and the places upon which plaintiff was supposed to stand and climb as follows:
"There was a step. It is a piece of iron, called a step on the bottom of the guide, called the guide step. That's where my right foot was. And there is a guide yoke step, that's approximately foot and one-half or four foot higher than the guide step and that's where my left foot was when my foot slipped off of the guide step throwing me backwards.
"Q. About how far apart, not height, but about how far apart running from the front to the back of the engine is the lower *1081 step and the yoke step? A. About four feet.
"Q. In what position were your legs if you had to stand with both feet, one on one step and one on the other? A. They were just about as far as I could reach apart.
"Q. In a `Y' shape? A. Yes sir.
"Q. Spraddled? A. Yes sir. Spraddled out.
"Q. Where were your hands when you were operating the job of pouring this oil into the engine? A. Had a gallon can in my left one and my arm was around the guide rod, guide rod, I believe that's what they call it. Anyhow it is a rod. It is put up there to — a valve rod is what it is and I had a flash light in my right hand and my arm was around that rod, holding me up there.
Plaintiff testified that the hand holds and steps on the side of the engine put there for use in filling the lubricator are open and obvious "in day light"; "you can't use them hand holds and pour oil with this hand; * * * you can't find them in the dark."
"Q. You could take your flash light and find them couldn't you? A. And hold up there?
"Q. Yes sir. A. How you going to hold with your other hand; you can't do it.
"Q. All right. You could take your flash light and with your knowledge of the presence of them there locate any of them couldn't you? A. No, sir.
"Q. You couldn't? A. No, sir."
That the steps on the side of the engine were "Black, oil covered steps."
With reference to a request for a hostler's stool, defendant's promise and plaintiff's reliance thereon, he testified, substantially, as follows: That he requested Mr. J. E. Friend, defendant's master mechanic at Big Spring, who had supervision and charge and gave orders at Baird relative to such matters, to furnish him a hostler's stool for the purpose of lubricating engines. That the request was made about a month prior to plaintiff's injury; that Mr. Friend said "Go tell Mr. Fetterly, the roundhouse foreman, to make you a stool to stand on to fill those lubricators." That Mr. Fetterly was the roundhouse foreman at Baird, where plaintiff was employed. That plaintiff delivered the message to Mr. Fetterly; that Mr. Fetterly said "We will make no changes. We will do it just like we have been doing it. Climb up there and fill them." Plaintiff said he again spoke to Mr. Friend and that Mr. Friend said "I will go down there and see about it myself." That this conversation occurred approximately thirty days prior to plaintiff's injury. Plaintiff testified that he continued to work because he was expecting a stool to stand on "everyday" to be built to fill that lubricator, or to use in his work supplying engines. That plaintiff didn't make one himself because he didn't have the authority and would not have been permitted to use it if he had. That during said thir ty-day period if plaintiff had known he was not going to get a stool he would not have continued to work because "it was dangerous. I was afraid I would get killed." That plaintiff had worked at said position prior to his fall, without a stool, "about four months, the last time"; that he had worked before that without a stool at Baird; that he had never worked at any other place than Baird without such a stool; that plaintiff had been an assistant hostler off and on ever since he had "hired out"; that all of the time he had worked in such position except at Baird, he had been furnished a three-legged hostler's stool for said purpose, but had never been furnished one at Baird. That when he was engaged, other than as assistant hostler, he saw what the hostlers and their helpers were doing, at Baird; that they were doing such work in the same way as plaintiff did. That when he worked for defendant at Big Spring he was furnished a hostler's stool for the purpose of filling the lubricators on the engines. That he held such a job at Big Spring about a year or year and a half "steady"; that the ground from which the hostler stepped on to the engine for the purpose of lubricating it was smoother at Big Spring than *1082 Baird. He described the manner in which he could have used a three-legged stool on the ground at Baird as follows: "The fill, under these engines doesn't come out past the guide over two, three or four inches and the rest of the rocks scattered and if you had this stool about three and one half feet high, which they make them, and I will say about eighteen inches in diameter at the top, you could set one leg there next to the rock ballast the other two hit the side and you could step up on it and fill your lubricator with the engine — ."
Plaintiff testified he was not furnished a ladder or any other device, other than those attached to the engine, for the purposes of assisting him in climbing the engine and servicing it. Plaintiff testified he knew it was "very dangerous to do that work" and with such knowledge after being promised the stool he continued to do that work in the same way for about a month after he was promised a stool.
With reference to whether or not the evidence showed conclusively that plaintiff assumed the risk incident to doing his work, under the conditions alleged and indicated by the evidence, we call attention to the following authorities:
In Texas N. O. R. Co. v. Bingle,
In Hilje v. Hettich,
In Taylor v. White, Tex.Com.App., 212 S.W. 656. 658, the court said: "A servant is not relieved of the assumption of the risks of a known defect by reason of a promise to remedy or repair unless it appears that his continuance in the service was in reliance on such promise. The authorities on this subject generally limit the operation of the promise, as preventing the conclusion that the servant has assumed the risk, to a reasonable time for the master to comply, and, when it is or should be manifest to the servant that the defect will not be remedied, a further continuance in the service will be an assumption of the risk. Hilie v. Hettich,
Also, see Taylor v. White, Tex.Civ.App.
In Detroit Crude-Oil Co. v. Grable, 6 Cir.,
Also, see McPeck v. Central, etc., R. Co., 1 Cir.,
In Missouri, K. T. R. Co. v. Baker,
To the same effect is the holding in Southwestern States Portland Cement Co. v. Young, Tex.Civ.App.
In Galveston, H. H.R. Co. v. Hodnett,
"Where the master or his representative promises to remedy the defect, the servant by continuing in his employment for a reasonable time after such promise does not assume the risk of injury from the defect unless the danger was so patent that no person of ordinary prudence would have continued to work * * *." 39 C.J. p. 786, § 986.
"Where the danger is so obvious and imminent that no prudent person would undertake to perform the service, the servant is not justified in continuing in the performance of his services and assumes the risk of any injury which he may sustain." 39 C.J. p. 790, § 989.
"Where no definite time is fixed for making repairs, if the servant remains in the service longer than a reasonable time after the master's promise to repair the defect, he will be held to have assumed the risk. In some cases it is held that what is a reasonable time is to be determined by the time which might reasonably be required by the master in which to make the repairs; while in others it is held that the servant is entitled to remain for any period which will not preclude the reasonable expectation that the promise will be kept. Cases illustrative of what is, or is not, a reasonable time are set out in the notes hereto." 39 C.J. p. 793, § 995.
See, also, 39 C.J. p. 794, Notes; Hough v. Texas P. R. Co.,
In Seaboard, etc., Ry. v. Horton,
In Chicago, R. I. G. R. Co. v. Frederick, Tex.Civ.App.
In Lawson v. Hutcherson, Tex.Civ.App.
From the foregoing authorities we think it is clear that an exception to the general rule (that a servant, with knowledge and appreciation of the danger in using defective machinery furnished by the master, who continues in the employment assumes the risk) is generally recognized when the servant complains of the defect, the master promises to correct it, and the servant continues to work with the defective machinery, or instrument, relying upon the promise of reparation, provided (1) the danger is not so imminent and obvious that a reasonably prudent person would not continue to work, regardless of the promise, and (2) the servant does not continue to work after he can no longer reasonably expect, or does not expect, the master to keep his promise.
After a careful consideration of the testimony, and, giving credit to all the testimony favorable to plaintiff, and indulging every legitimate inference which might be drawn from the facts in evidence, we conclude a jury might have found for the plaintiff on the issue of assumed risk. In other words, the evidence does not show, as a matter of law, that plaintiff assumed the risk incident to continuing his work as assistant hostler without the aid of a hostler's stool. Wichita Falls S. R. Co. v. Lindley, Tex.Civ.App.
Whether the instructed verdict was based upon the conclusion that assumption of the risk by plaintiff was conclusively shown or not, it is our duty to affirm the judgment, based on the instructed verdict, if any issue essential to plaintiff's recovery, or any absolute defense, is conclusively established against the plaintiff. After a careful study of the evidence, we conclude that no such issue is established as a matter of law, but, we think that "discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff." Gross v. Shell Pipe Line Corp., Tex.Civ.App.
We, therefore, conclude the court erred in directing a verdict for the defendant. The judgment is reversed and the cause remanded. *1086