55 Tex. Civ. App. 157 | Tex. App. | 1909
John Moore, plaintiff in the court below, filed this suit in the District Court of Tarrant County against the Fort Worth Light & Power Company, the Southwestern Telegraph & Telephone Company, and the city of Fort Worth, claiming damages in the sum of $25,000 for personal injuries alleged to have been sustained by him in July, 1907, while in the service of the Southwestern Telegraph & Telephone Company, and occasioned by certain concurrent acts of negligence on the part of all the defendants. The trial resulted in a verdict in favor of the appellee for the sum of $4,000, which the jury apportioned as follows: $3,000 against the appellant, the Southwestern Telegraph & Telephone Company, and $1,000 against the Fort Worth Light & Power Company. Separate appeal bonds were executed by each of these defendants, and assignments of error filed in the trial court; but the telephone company alone has filed briefs in this court.
The- issue upon which we think this case should be disposed of is presented in the first assignment of error, in which the sufficiency of the evidence to sustain the verdict and judgment is questioned. It
We deem it unnecessary to narrate any of the testimony of any of the witnesses which tended to contradict the statements of the appellee. The injuries sustained by the fall form the basis of the suit. Inasmuch as we dispose of the case upon the first assignment of error, it will have to be done on the assumption that his testimony shows that he is not entitled to recover.
The acts of negligence here charged against the telephone company are, that it failed to furnish the appellee with a safe place in which to work. Harrowed to a more specific detail, it charged the failure of the appellant to provide some suitable method for preventing the electric wires of the city from coming in contact with the step on the pole which the appellee climbed and from which he fell. It is not contended that the city wire’s becoming charged with an electric current at this unexpected hour was due to the negligence of this appellant, but this dereliction is attributed to the Fort Worth Light & Power Company, and was the basis for the judgment rendered against that company in the trial below.
The general rule that the master owes the servant the duty to exercise ordinary care to provide a safe place in which to perform his labor is too elementary to need discussion. It is also well settled that the servant can not recover on account of a negligent failure of the master to perform this duty, when such failure is known to the servant, or could have been ascertained by him in the exercise of that degree of care and circumspection which an ordinarily prudent person would use for his own safety under the same or similar circumstances. St. Louis S. W. Ry. Co. v. Hynson, 101 Texas, 543, 109 S. W., 929; Texas & P. Ry. Co. v. Bradford, 66 Texas, 732, 2 S. W., 595; Barnet v. Galveston, H. & S. A. Ry. Co., 89 Texas, 76, 33 S. W., 334. We do not understand that counsel for appellee controvert this general proposition; but they insist that in order to preclude a recovery by the servant he must also know of the existence of the danger likely to result from such dereliction of the master, or that the danger must be so apparent that it would be seen and appreciated by a person of ordinary prudence. As an abstract question we may concede this to be correct. But it finds a practical application in cases where inexperienced servants sustain injuries from defective appliances or places of work, and where the facts show that they were incapable, by reason of their inexperience, of appreciating the peculiar dangers to which they were exposed. In cases of experienced employes the
We think the evidence very conclusively shows that the appellee was under a greater duty to look out for his own safety in the places he was called upon to work, than that which generally rests upon the servant. Whether the act of permitting the electric light wire of the city to remain in contact with the step be regarded as negligence on the part of the telephone company or not, we think it was a situation of which the appellee under the circumstances assumed the risk. He either knew or should have known where he was placing his hands, and the wires with which he was likely to come in contact. Such a precaution was not only imposed by what he says was his duty, to see that the place in which he was to work was safe, but by ordinary prudence as well. .
Without passing upon any of the other assignments of error, we think that as to the appellant Southwestern Telegraph & Telephone Company this case should be reversed and judgment here rendered in its favor. The case is therefore ordered reversed and rendered.
In the motion for a rehearing counsel for appellee insist that we erred in holding that appellee assumed the risk of the dangers incident to coming in contact with the wire, even if the evidence is sufficient to show that he knew the situation of the wires before and at the time he received the shock which caused him to fall. They contend that there is not sufficient evidence to support the conclusion that he knew of the presence of the danger which he encountered. We do not intend that the language used in the original opinion should he construed as going far enough to say that because the appellee knew of the condition of the wires he must necessarily have known of the lurking danger resulting from one of them being charged with a current of electricity. A knowledge of a situation does not always carry with it the knowledge of a danger. But it is not necessary to rest the conclusion we have reached, that the appellee knew of the danger likely to result from the abnormal condition which confronted him, upon a knowledge of the condition alone. He testified that electricians considered all wires with which they came in contact as charged, and dealt with them accordingly. He further says that he regarded the situation as dangerous, and swung out of the way of the wire for the purpose of avoiding the danger. He did not purposely come in contact with it, but did so accidentally and without observing its exact location on the iron step. Again, it is clear from his testimony that he would not have received the shock had he not at the time he placed his hand upon the iron step also put his other hand in contact with a messenger wire which he knew to be grounded. He was an experienced lineman and knew all the dangers incident to coming in contact with charged wires, was fully acquainted with the power and dangers of the electric current. The only fact about this situation of which he can be heard to plead ignorance is that the wire with which he came in contact at the time carried a current of electricity; hut this, we think, becomes unavailable in view of his admission of the rule recognized and observed by his class of workmen, to treat all such wires as charged, and that at the time he swung himself around to the south side of the pole he was then undertaking to avoid contact with this wire for that very reason. It must be borne in mind that this current which caused his shock was not due to any negligence or conduct on the part of the appellant telephone company, or from any cause over which it had control. The conditions which produced it were as much within the knowledge of the appellee as that of the appellant company. Where the servant has equal knowledge with the master of the dangers incident to his work, he takes the risk upon himself if he goes on with it. Galveston, H. & S. A. Ry. Co. v. Lempe, 59 Texas, 19. In the case cited the court said: “There are some circumstances which will vary these rules, or rather create exceptions to them, hut the present case is not brought within any of such exceptions. One of these is where the defects in the machinery or the premises about which the servant is employed are obvious, but the danger is not apparent. In such cases the master is held liable because the master should have taken steps to ascertain whether the defects render them unsafe. Wood on Master &
“The difference is between going into the service or continuing in it, ‘knowing that the instrumentalities employed are unsafe and dangerous,’ and knowing that defects exist, but not that they necessarily render the employment of a perilous character. It is sought by appellee’s counsel to bring this case within the above exception, and to that end he cited several reported cases; but with the above distinction in view, all the authorities cited by him are easily explained, and rendered consistent with the law as announced in this opinion.’’
Here the appellee knew of the condition of the wires and their situation with reference to the pole, and knew that the wire which caused his shock belonged to the city, and the purposes for which it was employed; and he will also be presumed to know as much about the fact of the accident that caused the current in this instance, or the probability of such occurring, as did the telephone company, his employer. He must have known also that while the city wires were generally dead during the daytime, they might not be so under any and all circumstances, and further, that where wires belonging to other companies crossed the city’s wires just such accidents as did occur were likely to happen. There was no failure to perform any duty due from the master to the servant in this instance of which the appellee did not have full knowledge. He therefore stood in the attitude of knowing the negligence of the master, and had equal facilities with the latter of knowing all the dangers that would necessarily result from that situation. The motion for a rehearing is therefore overruled.
There is also a motion filed in this case asking that we reform and affirm the judgment of the trial court for the full sum of $4,000 against the Fort Worth Light & Power Company, one of the defendants below. The verdict rendered by the jury in the trial court was as follows: “We, the jury, find for the plaintiff, John Moore, judgment in the sum of four thousand dollars; three thousand dollars against the Southwestern Telegraph & Telephone Company, and one thousand dollars against the Fort Worth Light & Power Company; and we find in favor of the defendant, City of Fort Worth.” Hpon this verdict judgment was rendered for the plaintiff as follows: “It is therefore ordered and adjudged that said verdict be in all things approved and made the basis of judgment herein, and that the plaintiff, John Moore, is entitled to recover damages and does hereby recover on account of
The only errors which this court can revieAV are those presented by appropriate assignments or cross-assignments, or such as appear upon the face of the record. Revised Civil Statutes, article 1014; Applebaum v. Bass, 113 S. W., 174, and cases cited. It has also been held that a codefendant can not assign error unless he also appealed. Anderson v. Silliman, 92 Texas, 560, 50 S. W., 576. A party not appealing can not have a judgment amended. Succession of Thomas, 114 La., 695, 38 So., 519; Ware v. Couvillion, 112 La., 43, 36 So., 220. The right to consider and correct fundamental errors, or such as appear upon the face of the record, is restricted to those only which
Reversed and rendered for appellant Southwestern T. & T. Go.