109 S.W. 929 | Tex. | 1908
Plaintiff in error had and maintained at Texarkana, Texas, a yard in which there were a large number of tracks and switches, on which tracks it stored cars and moved them from one point to another and by means of the switches it shifted them from one track to another. At each switch there were two guard rails which were placed on the inside of the main rails of the track and at a distance of two and one-half inches from the main rails, except that each end the guard rails were bent towards the center of the track so that the end of the guard rails would be five to seven inches from the main rails. The purpose of the guard rails was to guide the wheels of the cars which were being switched from one track to another so as to place them on the desired track. In this yard there were thirty-five or more switches and somewhere between seventy-five and one hundred guard rails. Some railroad companies blocked the guard rails, that is, a block of wood was driven in between the end of the guard rails and the main rails in the V shape space and adjusted in such way as to allow the flanges of the wheels on the car to pass over them and at the same time to prevent the foot of any person engaged in the work there from slipping between the two rails. Some of the most important railroads in the country, and perhaps a majority of all the roads, do not use blocks and regard them as more dangerous than to have the guard rails unblocked. The plaintiff in error did not use the blocks in the guard rails, neither did the Texas Pacific Railroad with which it was connected at Texarkana. The guard rails in this yard, except a few, perhaps three or four, were unblocked. The absence of the block was so palpable that the plaintiff himself testified that it could be seen at a glance. There was nothing complicated about it to prevent one from understanding it if he observed it at all.
Hynson had been engaged in running on different roads as a brakeman and had been acting as a switchman in the yard for about seven years and had worked in such yards both at day and night time. He had been engaged at work in this yard as brakeman and switchman for about seven months, working from 7 p.m. to *546 7 a.m. each night. Hynson testified that he had never noticed whether the guard rails in the yard were blocked or not until after he was injured; that he never thought about it, and that if he had looked at it he would necessarily have seen that they were not blocked. The evidence showed that there was one block near the passenger depot and two blocks in the guard rails at a point near to the place where the injury occurred. Hynson had seen the block near the depot because he passed over it every day, but he had not noticed the block down near to where he was injured at all, nor any of the blocks in any other part of the yard.
At the time of receiving his injury Hynson was engaged as a brakeman in switching a car from a track in the yards of the plaintiff in error to the connecting track of the Texas Pacific railroad. He had just passed over the switch where the guard rails were and was about forty feet from the end of the guard rails when it was started back so as to be placed on the connecting track of the Texas Pacific. He knew that the switch was there and that the guard rails were there. He received the signal to uncouple the car and attempted to do so by the use of the handle provided for uncoupling the cars without going between them, but the instrument failed to work for some reason, and he stepped between the cars to pull the pin out and was walking along the track when his foot was caught in the guard rail and while hanging on to the car was dragged until his foot was pulled out between the rails and badly injured.
At the trial the district judge instructed the jury to return a verdict for the defendant which was done and judgment entered accordingly. The Court of Civil Appeals reversed this judgment and remanded the case for a new trial. This writ of error was granted because the decision of the Court of Civil Appeals in this case was in conflict with the decision of the Court of Civil Appeals of the Fifth District in the same case on a former trial, upon the question that as a matter of law Hynson assumed the risk of the unblocked condition of the guard rails in the yard and therefore could not recover for his injury.
The decisions of this court have established the law to be that "the servant owes no duty of inspection. He assumes the risks of a danger of which he has actual knowledge, and of such hazards as he would have learned by the exercise of that ordinary circumspection which a prudent man would have used in the particular employment. Since, in the absence of knowledge to the contrary, he may rely upon the assumption that the master will do his duty, he is under no obligation to look out for the master's negligence; but he can not shut his eyes to dangers that are obvious to an ordinary man, or to an experienced man if he be experienced." (Bonnet v. Galveston, H. S.A. Ry. Co.,
The negligence of the railroad company in failing to properly inspect and keep the automatic coupler in a reasonable condition for use constitutes no answer to the defense that the plaintiff assumed the risk of danger from the unblocked guard rails. (Denver R.G. Ry. Co. v. Norgate, 6 L.R.A. (New Series), 981, 141 Fed. Rep., 247; St. Louis Cordage Co. v. Miller, 63 L.R.A., 551, 126 Fed. Rep., 495; Knisley v. Pratt, 32 L.R.A., 367,
Hynson's testimony shows that he controlled the movement of the cars by signals given to the engineer; he could have stopped the cars at any time he desired to do so. There were five cars attached to the engine, the rear car being the one which he was to uncouple. The cars were moving slowly, about as fast as a man could walk. The car to be cut off had a coupler on the opposite side from that on which Hynson was. When Hynson pulled the lever of the coupler in the attempt to uncouple the car, he was outside of the railroad track. Failing to lift the pin with the coupler, Hynson, still outside the rails, reached in and tried to pull the pin out, but it was fastened *548
so that he could not remove it. Instead of giving the signal to stop the cars until he could go on the opposite side and use the coupler as he might have done, with full knowledge of the defect of the coupler which he had tried to use and of the fact that the pin was fast, Hynson stepped in between the cars and walked between the rails trying to remove the pin. Of the two ways in which he might have performed his service, one safe and the other hazardous, he chose that which was dangerous, from which choice his injury resulted. In making this choice he assumed the risk of injury which might result from the performance of his work in the way he had chosen. (Railway v. Mathis, decided by this court at the present term; 1 Labatt, Master and Servant, sec. 258; International G.N.R.R. Co. v. McCarthy,
Reversed and judgment of District Court affirmed.