59 Tex. 19 | Tex. | 1883
Lempe was an employee of the appellant, whose duty it was to work in the “ bridge gang.” After being engaged in bridge work for twenty days, he, together with the remainder of the gang and their foreman, went to Flew Philadelphia to fix a well. He had never worked on a well before, and worked on this one by order of his foreman. This well was one used -by the railroad company to get water for its engines. It had been out of repair for a month or more and the curbing had begun to fall in. Lumps of dirt fell in every day, and about three feet from the surface the well had caved, leaving the surface dirt overhanging and the curbing had begun to fall in. It had been raining considerably about the time Lempe went to work there, and the ground was saturated with water, and the earth was caving in at intervals all the time. This caving could have been prevented by digging away the overhanging dirt. The well was fifteen or twenty feet square when curbed, and, according to one witness, ten, and to another, twenty feet deep.
After appellant had been at work on the well for about three days, and whilst he was on the outside of the curbing, spiking a plank to its place, a fall of dirt from the top of the well occurred, which, striking him, broke his upper jaw in one place, his lower jaw in two places, and tore three of his ribs loose from the backbone. During the three days that appellee worked in the well the overhanging dirt was constantly falling, and he and his co-laborers dug it up and removed it as fast as it caved. In the opinion of witnesses examined on the trial, the well was dangerous for a month
Lempe brought this suit against the railroad company to recover damages for the injuries thus received and obtained a judgment for $3,000. A motion for new trial made by appellant having been overruled, an appeal was taken to this court. At the last Galveston term the judgment below was affirmed, but on application of appellant’s counsel a rehearing was granted, and the cause now comes before us for a re-examination.
The errors assigned are that the court refused, on request of defendants below, to charge the jury to find in its favor, and in overruling the motion for a new trial, in which it was urged that the verdict and judgment were contrary to the law and the evidence.
The appellee claims that he was entitled to a verdict on the following grounds:
1. Because the accident was the result of his obeying the orders of the company and engaging temporarily in a work different from that in which he was ordinarily employed.
2. Because appellant knew of the dangerous character of the work and did not take any precaution to prevent an injury to appellee.
3. Because appellee’s knowledge of the risk does not prevent his recovery, the injury occurring from an involuntary act, or one done by express command of appellant.
4. Because appellee had a right to rely upon the care and superior knowledge of appellant in protecting him from injury.
5. Because the danger not being so apparent that appellee as a prudent man had cause to apprehend injurious consequences, he was not guilty of contributory negligence.
6. Because the question of appellee’s knowledge of the danger was properly left to the jury, and they having determined that and all other facts in the cause, their finding should not be disturbed.
As to the first of these grounds, it is sufficient to say that the proof does not show that working upon a well of the company was not a part of the ordinary employment of the bridge gang. We do not think this circumstance in itself sufficient to authorize the inference. It may have been a part of the duties of these very laborers to repair the wells of the company; or they may have been persons employed to work generally for the corporation, and were called the “ bridge gang,” by the witness, because engaged at the time in working upon one of its bridges. The true character of their duties should have been shown and not left to conjecture; but no evidence was offered on the subject. Divested of all proof as to
What are the principles of law which apply to such a state of facts?
The general principle is, that, when a servant enters into the employ of another, he assumes all the risks ordinarily incident to the business, and as between himself and the master he is supposed to have contracted on those terms. Wood on Master & Servant, sec. 326. Another principle is: Where the servant has equal knowledge
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.
The case of Patterson v. Pittsburg R. R. Co., 76 Pa. St., 389, was where a conductor was injured in an accident caused by a defective switch. The court held the company liable, although the defect was known to the conductor, because the defect was not such as to threaten immediate injury, and that it was reasonably probable that it might safely be used by extraordinary caution or skill. But they also held that if the instrumentality had been so obviously and immediately dangerous that a man of common prudence would refuse to use it, the master would not be held liable for the resulting damage. Besides, it was shown in that case that the proper officers of the road had been notified of the danger and they had promised to re
The case of- Strahlendorf v. Rosenthal, 30 Wis., 675, is not analogous because the facts show that the defects and danger were known to the employer, but unknown to the employee, and Avere not patent or obvious, and the general principle asserted in this opinion was there sanctioned by the court. Subsequent to the decision of that cause, the same court, in Naylor v. Ch. & N. W. R. R. Co., a case almost exactly similar to the present one, where the evidence showed that the plaintiff, before and at the time of receiving the injury complained of (from the falling of a bank of earth, under Avhich he was excavating ground for defendant), was fully informed of the peril to himself- of the services in Avhich he w&s engaged, and voluntarily remained in the dangerous position he Avas occupying, and the court held that he was not entitled to recover. The court comment on Strahlendorf v. Rosenthal, and distinguish it from the one they are deciding, on the principles we have already alluded to. The only difference between Naylor’s case and the one under consideration was the fact that the agent of the defendant, a few minutes before the bank fell, notified Naylor of his danger. But the facts we have already stated gave Lempe as much notice of his peril as if positively informed of it by another. As illustrating and enforcing the principles announced by us, we refer to De Forest v. Jewett, 88 N. Y., 264; Louisville & Nashville R. R. Co. v. Orr (Indiana, November 3, 1882), 8 Am. & Eng. R. R. Cases, 94; Umbach v. Lake Shore, etc., R’y Co., id., 98; Smith v. St. Louis, etc., Co., 69 Mo., 32; Wharton on Neg., § 213.
The evidence shown by the transcript makes out a case of an em
Reversed and remanded.
[Opinion delivered February 23, 1883.]