66 Tex. 526 | Tex. | 1886
The appellee, who was plaintiff in the court below, applied to appellant’s officers for employment, and in reply to inquiries made of him, represented that he understood the business, having had ten years éxperienee as brakeman on railroads in
The errors assigned contain the proposition that the accident which happened to appellee was the result of the risk assumed by him in accepting the employment of the company, and call in question the sufficiency of the evidence to support a verdict for appellee on this ground. As a general principle the law is well established, that one who accepts the employment of another assumes all ordinary risks incident to such employment, and cannot recover for injuries resulting therefrom. Railway Company v. Hester, 64 Tex., 401; Railway Company v. Watts, 63 Tex., 549; Watson v. Railway Company, 58 Tex., 434; Wood’s Master and Servant, 678. And as a general rule it is not the duty of the employer to instruct him as to the rules of the service
But this rule is subject to some qualifications. It was held by this court, in the case last cited, that the servant being inexperienced and ignorant of the dangers of the service upon which he was just entering it was the duty of the company to have informed him of these dangers. The law is thus stated by a well known text writer: “Where there are' * * * hazards incident to an occupation which the master knows or ought to know, it is his duty to warn the servant of them fully, and failing to do so he is liable to him for any injury that he may sustain in consequence of such neglect, and this rule applies even where the danger or hazard is patent, if through youth, inexperience or other cause, the servant is incompetent to fully understand the nature and extent of the hazard.” Wood on Master and Servant, 714.
In Walsh v. Peet Valve Co., 110 Mass., 23, the plaintiff was injured in repairing a newly patented machine he had never seen before, and defendants were held liable. The court says: “If they (defendants) knew or ought to have known of the danger, and gave no warning, he (plaintiff) would be entitled to recover.”
In the case before us, it appears that the car wMch caused the injury, was used only in connection with a patented invention, and only upon the lines of two railroad companies, so far as the evidence discloses, and that the proportion of these cars to those of the usual and regular construction was not more than one in a thousand. It further appears, that appellee, though of long experience as a brakeman, had never seen a car like the one in question, and never saw the peculiarity of tMs until the injury was inflicted. All other cars were capable of being safely coupled by the “helper” standing between them; and this was the usual mode of making the coupling. Under these circumstances, can it be said, that appellee’s experience availed him in avoiding the danger in tMs case? On the contrary, it may be plausibly argued, that the fact of his being accustomed to make the coupling standing between the cars, after the manner usual upon railroads, was calculated rather to put him off his guard as to the peculiar hazard which here presented itself, and that an inexperienced person would have been less likely to have received the injury. He attempted to couple the cars, with his eye upon the one in motion, as prudence would seem to have demanded, and had no reasonable cause to apprehend the danger beMnd him until it was too late to avoid it.
We tMnk, therefore, it was the duty of appellants to have informed appellee of the use of these construction cars upon their roads, when
We find no error in the judgment and it is affirmed.
Affirmed.
[Opinion delivered October 19, 1886.]