70 S.W. 531 | Tex. | 1902
1. It is not true that servants of railway companies are held bound by the law under all circumstances to obey the orders of their superiors. Obedience to an order may involve personal risk so great and so obvious that no prudent man should take it. The master or his representative has no right to give nor is the servant bound to obey such an order. Nor is it necessarily true that, if work which the master orders the servant to do is extra hazardous, the master is responsible to the servant for the consequence of obedience. If the work be of so dangerous a character as we have just instanced, the servant, if he takes the risk of doing it, will not be heard to complain in the courts. The statement of the rule in the special charge was in an abstract and comprehensive form, without a qualification which was essential to its accuracy. A jury following it according to its terms would be bound to conclude that, if the servant were injured as a consequence of his obedience of an order of his superior, the master would be responsible, in law, for the damage inflicted, whatever might be the character and degree of the danger incurred. The defense involved the contention that the order to seal up the car only meant that the plaintiff should do so while the car was on the side track, and that, in following it upon the main track and there exposing himself to increased perils, plaintiff went beyond the terms of the order. If this is true and plaintiff was not hurt while acting in obedience to the agent's order, the special instruction had no application. But the plaintiff's theory, reflected in the instruction, evidently was that the order required the work upon the car, whether at one place or the other, and was being executed when the injury occurred. This was a question for the jury, and, in case they sustained this contention of plaintiff, the further question arose for their decision, whether or not the situation involved such risk that plaintiff as a man of ordinary prudence ought not, under all the circumstances, including the order, to have undertaken to do the work as he did. The general charge and special *134 charges given for defendant submitted this question as one of negligence vel non, but special charge No. 8, applied in this connection, virtually instructed without qualification, that, if the work was extra hazardous and plaintiff in doing it was obeying the order, defendant would be responsible. This was, in effect, to tell the jury that the order, if obedience to it brought about the injury, removed any question as to plaintiff's negligence as submitted in other instructions. At least the jury might naturally thus reconcile the differing instructions, and such instructions, if not thus reconciled, would be in such conflict as to confuse the jury. In either view there was error which the appellate courts can not say was harmless.
We answer the first question and the first branch of the second question in the negative. Assuming that the question of reversal or not depends alone upon the instructions, the pleadings and evidence stated, we answer the second branch of the second question in the affirmative.
2. A defendant has the right to plead inconsistent defenses, and where in one part of an answer he denies or otherwise puts in issue a fact and in another part alleges its existence, the answer can not be taken to be an admission of such fact. Duncan v. Magette,