155 S.W. 973 | Tex. App. | 1913
Appellee sued appellant for damages for personal injuries alleged to have been received on the cars of appellant at the hands of appellant's conductor while the conductor was exhibiting his pistol to appellee and another passenger, and which he negligently discharged, thereby wounding appellee in the leg and causing him the injury and suffering claimed in his pleading. The appellant pleaded that if appellee was injured he contributed thereto for the reason that said pistol when discharged was being exhibited to appellee upon his specific request that the conductor demonstrate its mechanism; and further that the appellee assumed the risks incident to such demontration. By supplemental petition appellant alleged that if he did request appellee to demonstrate the mechanism of the pistol, which was denied, he nevertheless was unaware that the pistol was loaded, while the conductor by the exercise of reasonable care could have ascertained such fact, and that his failure to do so and the pointing of this pistol toward appellee was negligence. The case was tried by jury, and verdict was for appellee for $3.000, followed by judgment of the court accordingly, from which the appeal is taken.
The material facts upon which the suit is based disclose that appellee is a traveling salesman and at the time of his injury was a passenger upon appellant's cars en route from Greenville to Cooper; that when appellee boarded the cars at Greenville, Ed Riley, of that place, also became a passenger; that appellee and Riley desired to discuss some business matters and one or the other asked permission of the conductor on the train to enter the rear coach of the train which was locked and contained no passengers, which was granted and the coach door unlocked by the conductor; that some time after appellee and Riley entered the coach the conductor also entered, and whereupon appellee either inquired of the conductor concerning an automatic pistol which appellee knew the conductor owned, or the conductor inquired of appellee if he had bought for his own use a similar one (appellee testifying that the conductor introduced the subject of the pistol, while the conductor and Riley testified that appellee did so); that the conductor, who was armed with the pistol in anticipation of trouble with passengers who had refused to pay fare, informed appellee he did have the pistol; that either appellee or Riley requested permission to see it, and whereupon the conductor, who at this point was on his knees in the seat immediately in front of Riley and appellee, took the pistol from his pocket and handed it to appellee, so the conductor and Riley testify, but which is disputed by appellee, who testified that he handed it to Riley; that the conductor either before handing the pistol to appellee or Riley, or after receiving same back from them, thought he had removed the clip containing the cartridges or had attempted to do so; that after the examination by appellee and Riley, the conductor, according to appellee's testimony, volunteered to demonstrate how the safety on the pistol, *975 which was an "automatic," operated, while, according to the conductor and Riley, appellee inquired of the conductor how the "safety worked," and whereupon the conductor, according to Riley, and which the conductor does not dispute, with the pistol in his hand, said, "When the safety is in this position you can't fire it," and pulled the trigger to show it would not snap, and then remarked, "When it (the safety) is not in position —" but before finishing the sentence the pistol exploded and injured appellee. Appellee's version of the accident is that the conductor merely remarked, "Here is the way she works," and then the explosion resulted, while the conductor's theory is that, while his finger was on the button which "worked" the safety, his hand slipped, and he accidentally pulled the trigger. It is conceded by all the witnesses that the most that was requested or volunteered was a demonstration of the safety, and that the operation or demonstration of the safety is wholly disconnected with the trigger of the pistol, and that the mechanism which works the safety does not and cannot fire the pistol.
The first assignment of error asserts that the court erred in refusing to submit to the jury that if appellee requested the conductor to demonstrate the operation of the safety upon the pistol and appellee was injured while such demonstration was in progress, such request would constitute contributory negligence and bar a recovery by appellee. The court below did decline to submit to the jury the issue of contributory negligence. "Contributory negligence in its legal significance is such an act or omission on the part of plaintiff, amounting to an ordinary want of care, as, concurring or cooperating with the negligent act of the defendant, is the proximate cause or occasion of the injury complained of." 29 Cyc. 505. Again, "by contributory negligence is meant some negligent act or commission on the part of the plaintiff, which, concurring or co-operating with some negligent act or commission on the part of the defendant, is the proximate cause of the injuries complained of by the plaintiff." Railway Co. v. Casseday,
The second assignment of error advances the proposition that the court erred in refusing to submit to the jury the issue that appellee assumed the risk of being shot when he requested the conductor to operate the safety for his instruction. In reference to this assignment it is sufficient to say that if the appellee subjected himself to a known danger arising from the negligence of appellant's conductor, or one reasonably to be expected, when he requested the conductor to operate the safety upon the pistol, it would be contributory negligence rather than an assumption of the risk incident thereto. Railway Co. v. Patillo,
Further, it may be safely said that the rule of assumed risk has no application between carrier and passenger unless it be "the risks of all accidents not arising from any negligence of the defendant" Herring v. Railway Co., 108 S.W. 977. Hence, in our opinion, and in consonance with what we have said in reference to appellant's first assignment of error, the evidence did not authorize the submission of the issue of assumed risk.
The third assignment of error asserts that the court below erred in refusing to charge the jury that, when the conductor was demonstrating the safety attachment of the pistol at the request of the appellee, he was acting without the scope of his employment, and that as a consequence the appellant was not liable for the resultant accident and injury to appellee.
It is settled law in this state that carriers of passengers are not responsible for wrongs done to passengers by servants acting in their own interest and not in that of the employer. Railway Co. v. Bush,
The judgment of the court below is affirmed.