Watson v. H. & T. C. R'y Co.

58 Tex. 434 | Tex. | 1883

Watts, J. Com. App.

Among other things, the court instructed the jury that “ If the proof shows that plaintiff was a brakeman, and as such it was his duty to couple any and all cars, damaged or sound, then if he, in attending to his duty, received an injury, he cannot recover, unless defendant did not do what was usual and proper in placing the car on the side track or by chalking on the car out of order,’ or in some other manner reasonably calculated to put an ordinary man on notice.” This charge is objected to as being upon the weight of evidence, and misleading.

If, as claimed, it was the usage or custom of the company, when a car had been disabled or had otherwise become unfit for use, that it was chalked “ out of order,” and placed upon a side track for the purpose of being removed to the shops for repairs, and that when so chalked and placed upon the side track it was part of the duty of the employees operating trains upon the line to couple the same in the trains and remove them to the shops, then any person accepting employment to assist in operating trains upon the company’s line would do so subject to such usage or custom, unless it should be made to appear that the company had concealed the existence of such usage or custom from the employee. The burden is upon the company to establish the existence of such usage or custom, but when it is established, if the employee seeks to avoid its force and effect, the burden is upon him to show that its existence has been concealed from him by the company.

For general use the company must furnish its employees with sound, complete and suitable cars, with all the usual and necessary attachments; but it is well known to all that the most complete and perfect car that can be contrived by the ingenuity of man is liable to bpcome unfit for use, either by accident or the nature of the business in which it is used, at points on the line where there are no facilities for making repairs, so that its removal to the shops of the company for that purpose becomes indispensable. Therefore some employee must engage in handling and removing them. This duty may be imposed upon any class of employees who are willing to assume the risks incident to the employment; and it is immaterial whether this is the entire scope of the employment or merely incidental to the main employment, the same result would follow. If the appellant accepted service as a brakeman, and by the usage or custom of the company it was a part of his duty to couple these defective or broken cars to the train, so that the same could be carried to the shops for repairs, then he will be held to have assumed the risks incident to that particular employment. Flanagan v. C. & N. W. R. R., 45 Wis., 98.

And as to the notice of the defective character of the car, if the usage of the company, in giving notice of such defect, consisted in chalking upon the car the words “ out of order,” and placing them upon a side track for removal, then it will be held that appellant engaged in the service subject to such usage or custom, and if the notice in this case was given in the usual and customary manner, then it was sufficient. His incapacity to read the notice would not affect the result. He could only secure exemption from such usage or custom by contracting against it; for his incapacity to understand the nature and extent of the business he engages to perform is not chargeable to the fault of the company.

It is immaterial whether such incapacity arises from a want of sufficient .education to read and understand the purport of the usual “ out of order,” or from want of skill in the performance of other duties appertaining to the employment.

However, there is an error in the latter part of the charge, wherein the court assumes that either the placing of the car on the side track or by chalking on it “ out of order ” would be sufficient “to put an ordinary man on notice.” Doubtless the use of the disjunctive “or” instead of the conjunctive “and” was an inadvertence and not intended by the court. This, however, would not render the charge less objectionable nor less injurious to appellant.

It is not pretended that the mere placing the car upon the side track was ever considered as or intended to constitute notice of any defect in it whatsoever. All classes and kinds of cars are left standing upon side tracks, and no usage or custom is shown to exist whereby, from that fact alone, any presumption would arise as to such cars being out of repair. All that is claimed by appellee is, that, by placing a car on the side track chalked “ out of order,” notice is thereby given to its employees that the car is defective and not for general use.

When considered in connection with the evidence this error becomes material. The only evidence in the record as to this particular car being chalked “ out of order ” is found in the testimony of the witness William Starks, who, after giving a detailed account of the accident and his own success in coupling the ear to the train, says: “ I afterwards noticed on tire car, marked on the side, ‘ out of order.’ ” When he observed that the car was thus chalked is not made to appear. It might have boon immediately after the accident or at some subsecpent time. If the car was not so chalked at and before the injury, it will hot be contended that the fact that it was standing on the side track would be any notice whatever of its defective condition.

[Opinion approved January 29, 1883.]

We conclude that the judgment ought to be reversed and the cause remanded.

Revises ed and remanded.