Missouri, O. & G. Ry. Co. v. Dereberry
167 S.W. 30
Tex. App.
1914
Check Treatment
WILLSON, O. J.

(after stating the facts as above). [1, 2] Unlеss it appeared as a matter of law that appellant was not liable to appellee for the injury he suffered, appellant’s сontention that the court erred when he refused to instruct the jury to find in its favor should be overruled. To our minds it clearly did not so appear. It was shown without disрute that long freight trains frequently were left standing on the main line track at the point where appellee attempted to cross same, and that during the 14 months appellee had been in appellant’s service it had been the custom for employes, having occasion to go from one side of said track to the other side thereof while a train was standing thereon, to either climb over the cars or between same. It was further shоwn without dispute that always theretofore em-ployés in charge of trains standing on the track before starting same had given warning of their intention to do sо by blowing the whistle or ringing the bell of the locomotive. And it was further shown ‍‌‌‌​​‌‌​​​​‌​‌​‌​‌​​​‌‌‌​​​‌​‌‌‌​​‌‌​​‌​​‌‌​‌‌‌‌‍without dispute that on the occasion when appellee was injured the employés in charge of the train started it without either blowing the whistle or ringing the bell, or otherwise giving notice of their intention to start it. If appellant knew of the practice of its employes in the discharge of their duties to it of crossing between cars standing on the track as ap-pellee attempted to do, and of the practice of giving warning before moving cars standing as those were, clearly it owed appellee the duty, on the occasion when he was injured, to use ordinary care to so manage its train as to avoid injuring him. We do not think appellant should have been heard tо deny that it had knowledge of the manner in which its business in the respect stated had been conducted during the 14 months preceding the time when the accident occurred. If it owed appellee such a duty, then clearly the testimony showing that it started the train without first giving warning of its *32 intention to do so was sufficient to suрport a finding that it violated ‍‌‌‌​​‌‌​​​​‌​‌​‌​‌​​​‌‌‌​​​‌​‌‌‌​​‌‌​​‌​​‌‌​‌‌‌‌‍that duty, and'therefore was guilty of negligence. Hall v. H. & T. O. Ry. Co., 125 S. W. 946, relied on in the argument and cited in appellant’s brief as supporting its contention, was not like this case. It was not shown in that case that the plaintiff in attempting to pass between the cars was following a practiсe long prevailing in the defendant’s yard, of which it was bound to take notice. “Not one iota of testimony,” said the court in that case, “was offered that tended in the slightest degree to show that the employés engaged in switching the string of ‍‌‌‌​​‌‌​​​​‌​‌​‌​‌​​​‌‌‌​​​‌​‌‌‌​​‌‌​​‌​​‌‌​‌‌‌‌‍cars knew, or had any reason to expect, that deceаsed, an experienced railroad man, would undertake the dangerous and reckless act of climbing over between the cars when he knew they were liable to be moved at any moment. So far as the record shows, the employés handling the train were absolutely ignorant of any intention on the part of Hall to cross over between the cars. Having no knowledge of such intention, they owed no duty to him to act with that in view.”

[3] The further contention, made in support of the assignment, that it appeared that the risk appellee incurred in attempting to cross between the cars was' оne he had assumed, should not, we think, be sustained. Appellee did not assume risk arising from the negligence of other employés of appellant of whiсh ‍‌‌‌​​‌‌​​​​‌​‌​‌​‌​​​‌‌‌​​​‌​‌‌‌​​‌‌​​‌​​‌‌​‌‌‌‌‍he had no knowledge. There is nothing in the record indicating that he had any reason to believe the employés in charge of the train would not pursuе the practice which had been pursued during all the time he had worked for appellant, and before moving the train give warning of their intention to do so.

[4] In the sixth paragraph of his main charge the trial court instructed the jury as follows: “If you further believe from the evidence that plaintiff, in going to said rip track, was passing between two of the cars in said train of cars standing on said main track, and while he was in the act of swinging down from one of said cars defendant’s employés in charge of said train of freight cars caused said train to give a sudden jerk which threw him on the ground and across the rail of said trаck, and that one of the wheels of said cars ran over plaintiff and he was thereby injured; and if you further believe from the evidence that it was the custom of defendant to stop freight trains upon its track between said carpenter shop and said rip track and leave same standing thereоn, and for defendant’s employés engaged in the service plaintiff was performing to cross between the cars standing on said main track, and that defеndant through its officers and agents had notice of said custom, or in the exercise of ordinary care should have known thereof,, if you find there was suсh a custom; and if you further believe from the evidence that plaintiff was exercising ordinary care for his own safety at the time he sustained said injury, if any; and if you further believe from the evidence that the causing of said cars to be suddenly jerked by defendant’s employés in charge of said train, if they did cause the same to be suddenly jerked, was negligence as that term has been defined to you, and was the direct and proximate cause of plaintiff’s injury, if аny — then you will find in favor of plaintiff, and assess his damages as hereinafter instructed, unless you find in favor of defendant under other instructions given you.” It is insisted that the instructiоn ‍‌‌‌​​‌‌​​​​‌​‌​‌​‌​​​‌‌‌​​​‌​‌‌‌​​‌‌​​‌​​‌‌​‌‌‌‌‍just set out was erroneous because it authorized a finding that defendant was guilty of negligence if its employés started the train with a sudden jerk. Construed by itself, the instruction is' subject to that objection. But construed, as it should be, in connection with other instructions given, the jury were not authorized, and reasonably could not have understood they were authorized, to find appellant guilty of negligence unless its employés in charge of the train not only started it with a sudden jerk, but аlso without first giving warning that they were about to start it. In the paragraph, seventh, following the sixth, the jury were distinctly told to find for appellant if they believed a signal was given that the train-was about to be moved. Moreover, in a special charge given at appellant’s request, the jury were told to find for it, even though they believed the employés in charge of the train failed to ring the bell or blow the whistle before starting it, if they further believed appelleе, had the bell been rung or the whistle blown, would not have heard same, or if he had heard same, nevertheless would have attempted, as he did, to crоss between the cars; and, in another special charge, given at appellant’s request, they were told to find for it unless they believed “that the failure to ring the bell or give some warning or signal that the train was to be started before it was started was the direct and proximate cause of the injuriеs sustained by plaintiff, and that but for so starting the train the injuries would not have occurred.” It is obvious, we think, that the jury could not have understood they were authorizеd to find appellant guilty of negligence merely because they believed the train was started with a sudden jerk.

There are other assignments than thosе presenting the contentions specified above, but we do not think any one of them suggests a reason why the judgment should be reversed.

As we view the testimоny, it was amply sufficient to support the finding involved in the verdict that appellee, without fault on his part, was seriously and permanently injured as the result of negligence on the part of appellant as charged in the petition, and we do not think the judgment should be disturbed. Therefore it is affirmed.