San Antonio & A. P. Ry. Co. v. Blair , 1915 Tex. App. LEXIS 69 ( 1915 )

FLY, C. J.

This is a suit for damages alleged by appellee to have accrued by reason of the negligence of appellant’s porter in throwing a trunk upon appellee. The cause was tried with a jury, and resulted in a verdict and judgment in favor of appellee •for ?20,000.

[1, 2] The first assignment of error is overruled. The petition stated a cause of action, and was not open to attack by a general demurrer, however subject it may have been to being assailed by special demurrers. No railroad company is authorized to have trunks thrown by its porter on a switchman, or any one else, and the petition clearly stated that the porter negligently threw the trunk on appellee. It is a singular proposition that a railroad company owes no duty to a man sitting on a velocipede near its platform, if he happens to be a switchman. The case of Dobbins v. Railway, 91 Tex. 60, 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856, cited by appellant, has no applicability whatever to the facts of this case. Appellee was not called upon to give his reasons for sitting close to the platform. He may have had no reasons for such action, but that did not authorize appellant to kill or maim him. All the facts necessary to a recovery were alleged in the petition, at least fully enough to withstand the attack made through a general demurrer. Appellee was not called on to describe the location of the platform, nor the minute circumstances surrounding the infliction of the injuries upon him.

[3] Until 1909, it was the well-settled rule in Texas that the doctrine of comparative negligence did not prevail in any case, but that if the plaintiff was guilty of contributory negligence he could not recover, no matter how negligent the defendant may have been. That rule has been abrogated by statute, however, in so far as applied to the em-ployés of any railroad company. As between the railway companies and their employes, the doctrine of comparative negligence is applicable. Rev. Stats. 1911, art. 6649. In that law it is provided that contributory negligence, on the part of a railroad employé, shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé. Under tlie provisions of that statute the relation of master and servant must exist, and the injuries must be inflicted while the servant is in the service of the master; but this does not mean that the servant must be actually at labor when the injury is inflicted, but if he is present and ready to respond to any call upon him by the master, he would be in the employment of the master, and would be within the terms of the law as to fellow servants, as to assumed risk, and as to contributory negligence. Mere cessation from labor for a time would not destroy the rights of the employe under the statute. Railway v. Scott, 71 Tex. 703, 10 S. W. 298, 10 Am. St. Rep. 804; Railway v. McHale, 47 Tex. Civ. App. 360, 105 S. W. 1149; Railway v. Hendricks, 49 Tex. Civ. App. 314, 108 S. W. 745; Railway v. Pennewell, 50 Tex. Civ. App. 541, 110 S. W. 758.

Appellee was in the employ of appellant as a switchman, and at the time he was injured he and his foreman were sitting on a velocipede, near the platform, waiting for a car to be unloaded, which, was to be handled by them. 1-Ie was in the actual service of appellant at the time, and is entitled to the benefits of the provisions of the statutes mentioned in regard to employés.

[4] Even if the law of assumed risk had been applicable to appellee, the facts in this case do not raise the issue of assumed risk. A switchman could not assume the risk of having trucks thrown on him, because assumed risk arises out of the ordinary course of business of the master. Appellee could not have entered the employment of appellant with the knowledge that trunks were thrown on people who stood near the platform. The facts might have raised the issue of contributory negligence, but not of assumed risk. As said by this court in Railway v. Foth, 101 Tex. 133, 100 S. W. 171, 105 S. W. 322, which was adopted by the Supreme Court:

“Assumed risk refers to a general course of action in connection with the master’s way of doing business and the appliances furnished; contributory neglig'ence refers to the question as to whether the servant acted prudently in connection with a certain matter that arose for his consideration at a certain time and place. The first is an intelligent choice; the latter is carelessness.”

The charge complained of in the third assignment of error correctly 'stated the law; for, if appellee was injured through the negligence of appellant, he was entitled to damages, because the contributory negligence of appellee was not a bar to his recovery as provided in article 60-19. The court in a succeeding paragraph applied the law of comparative negligence. In special charges, requested by appellant, the jury were instructed, in effect, that appellee could not recover anything if he was guilty of contributory negligence, which was more favorable to appellant than the law permits.

As before stated, • the special charges requested by appellant and given by the court were more favorable to appellant than they should have been, and they were, in effect, the same as the charge the refusal of which is complained of in the sixth assignment of error.

[5-7] The allegations of negligence in the second amended original petition are:

“Plaintiff further alleges that the defendant had intrusted one of its employés, known as the station porter, with the duty of handling and placing trunks upon said platform near which the plaintiff was sitting; and said porter, while engaged in undertaking to pile trunks on the platform near which the plaintiff was sitting, and while endeavoring to throw a trunk on top of other trunks, so handled said trunk as to cause it to fall upon and against the plaintiff, causing him to be injured and damaged as set forth in this petition; and the acts of said station porter in so handling said trunk as to cause it to fall upon the plaintiff, was negligence upon the part of this defendant, and such negligence by the defendant was a direct and proximate cause of the accident, injuries, and damages to plaintiff set forth in this petition.”

The only negligence alleged, it is readily seen, is that of the porter “while endeavoring to throw a trunk on top of other trunks,” and it is an elementary proposition that to entitle appellee to a recovery there must be proof that the act of the porter “while endeavoring to throw a trunk on top of other trunks” caused the trunk to fall on appellee. The trial amendment is not properly verified, and the theory embodied therein was not given in charge to the jury.

When the accident occurred, appellee and his foreman were seated on a railroad velocipede near the platform where trunks were being piled. Appellee had his back to the platform and was conversing with the foreman. Appellee was about one foot from the platform. He testified:

“The first thing I knew of something coming, I heard a racket, and looked over my shoulder just in time to see this negro grab at this trunk he had threw over the other trunk.”

He assumed in this connection, as he did in -other parts of his testimony, that the trunk was thrown; but he did not see the porter throw the trunk. With his back to the trunks, it was, of course, an impossibility to see the porter throw the trunk, and when he turned the negro was endeavoring to catch the trunk to prevent it from falling. It is true that in other parts of his testimony appellee stated:

“The station porter threw the trunk over, and struck me on the back, and knocked me down, and injured my back, and broke my leg.”

This is utterly inconsistent and irreconcilable with his testimony giving the details of the accident. 1-Ie does not claim to have seen the negro throw the trunk, but only saw him “grab at the trunk.” At that time the force, whatever it may have been, that propelled the trunk had been exerted, and appellee could not have known what it was. The foreman corroborates appellee as to the sound of the falling trunk, but no one corroborates him as to the porter being near the trunk when it fell. The foreman saw no one there. Only an instant of time could have elapsed from the time that the trunk commenced falling until it struck appellee. In fact, it- was so short a time that appellee could not jump out of the way. The foreman did jump out of the way, and was not struck, but saw no negro. The evidence fails to show that the porter threw the trunk, or endeavored to throw it, on top of the other trunks; the only evidence as to the porter tending to show that he was endeavoring to catch a trunk, which, for some reason not shown, was falling from its position. The unreasonableness of the testimony appears from appellee’s own statement, as follows:

“After having detailed this occurrence as I have to the jury, and being situated as I said I was with my back to the platform talking to Mr. Grasshoff, and knowing about the trunks being' behind me and piled as I say they were, at 4 o’clock in the morning, and after I heard the rattling of trunks coming, I still tell this jury, on my oath, that I saw that negro with his hand on that trunk throwing it over where I was.”

The platform was four feet high, and the trunks were piled up between where appellee was sitting with his back to them and any man behind them. It was in proof that a person behind only one trunk on the platform could not be seen by a man sitting on the velocipede standing near the platform.

Our former opinion was written on the hypothesis that there was evidence showing that the porter threw the trunk on appellee, but on a thorough reconsideration of the facts we are of opinion that there was no such testimony, but the evidence on its face showed that it was an impossibility for ap-pellee to have seen the porter throw the trunk. The whole case hinged on the fact that the trunk was thrown, and the mere fact that the porter was seen grabbing at the trunk did not show that he threw it before he grabbed at it. That he may have seen it begin to slip, and endeavored to catch it, is just as reasonable as that he threw the trunk on top of the others with such force as to cause it to slide down and injure appellee.

If it be admitted that the trunk slipped when the porter endeavored to put it on top of the other trunks, in what did his negligence consist? It was not alleged that he knew that appellee was sitting in dangerous proximity to the trunks. Appellee was just as cognizant of the danger in sitting near and below the platform on which trunks were being piled as the porter, and should have known of their propensity for slipping. Any man of ordinary intelligence ought to have know'll that it was dangerous to sit below and near trunks piled upon one another. Was it negligence to endeavor to put the trunk upon the others, and was it negligence to try to stop it when it started to fall? Unless the doctrine of res ipsa loquitur could be applied in this case, the evidence fails to show negligence. That doctrine cannot be invoked in this case.

The evidence showed that the trunks were piled two and three deep on the platform; that it was 4 o’clock in the morning; that appellee was sitting with his back to the platform where the trunks were piled; that the platform was four feet high; that it was impossible to see a man behind the trunks from the position of the velocipede occupied by appellee; that the trunk had started to fall before appellee turned his head; and this is all the evidence in the case to show negligence. The evidence of the porter showed that he was not near the trunks at the time of the accident, and that the trunk that fell had been in the position from which it fell for some time. A number of passengers were near the scene of the accident, but none was called as a witness, and appellee was not corroborated as to the position of the porter. There wras no evidence that the porter'was leaning over the trunk when seen by appel-lee, the only position in which witnesses testified he might have been seen by appellee.

This court fully understands the position in which appellate courts are placed in regard to the verdict of a jury, and they have faithfully sustained that position; but when the assertions of an injured party cannot be based upon facts and are in the face of reason, there is nothing sacred about the verdict, and it should be set aside.

The motion for -rehearing is granted, the judgment of affirmance heretofore rendered will be set aside, the former opinion withdrawn, and the judgment of the trial court will be reversed, and the cause remanded.

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