International & Great Northern Railway Co. v. Harris , 95 Tex. 346 ( 1902 )

Josh Harris sued the International Great Northern Railroad Company to recover damages alleged to have been received while plaintiff was in the employ of the defendant and engaged in operating coal chutes for the purpose of supplying the defendant's trains with coal. It was alleged that the coal chute which caused the injury was defective in the particulars alleged, of which fact the plaintiff was ignorant, but the defendant knew of the defect, or by the use of ordinary care would have discovered it. The allegations were full upon all points necessary to present the case, and it is unnecessary for us to state them more specifically. The defendant pleaded a general denial and that the injury was caused by the negligence of the plaintiff and his fellow-servant.

The Court of Civil Appeals found the facts to support the plaintiff's allegations, and that the plaintiff did not know of the defect, but that the railroad company did know of it. A more particular statement of the facts is not necessary to the decision of the point involved by this writ of error. There was evidence tending to prove that the plaintiff knew of the defect in the coal chute at the time he used it and received his injuries. The trial court charged the jury as follows: "If you further believe from the evidence, that on or about October 12, 1900, the plaintiff, while in the employ of the defendant, was injured as alleged in his petition, while operating or attempting to operate one of the defendant's coal chutes, and if you further believe from the evidence that said coal chute did not have a guard-board or guard-gate, and if you further believe from the evidence that the defendant was guilty of negligence in having said coal chute in the condition you find it was in, and that such negligence, if any, was the proximate cause of plaintiff's injuries, if any, then you will find for the plaintiff unless you find under the instructions hereinafter given you that the plaintiff himself was guilty of negligence that contributed to his injuries." The charge is assigned as error in the application for the writ, which was granted upon that ground. The defect complained of in the charge is that it failed to submit to the jury the issue of plaintiff's knowledge of the defect in the chute and that he assumed the risk by using it in its defective condition. Was the issue of assumed risk made by the pleadings? If not, the charge was correct, for evidence without pleading will not raise an issue. The evidence was not admissible under the general denial unless it was in rebuttal of some material allegation of the petition. The allegation of the petition that plaintiff did not know of the defect was not necessary to a recovery and therefore did not present an issue which could be met under the general denial. Mayes v. Railway, 63 Iowa 566. If the burden was upon the defendant to prove that plaintiff knew of the defect in order to charge him with the risk of injury, then it was required to allege the facts. In the case of Railway v. Johnson, 89 Tex. 523 [89 Tex. 523], the plaintiff's right of recovery depended upon the fact that the defendant had employed an incompetent conductor whose negligence caused the injury complained of. The railroad company claimed that the general reputation of the conductor among his coemployes put the plaintiff upon notice of his incompetency, and that, knowing his incompetency, a continuance in the service carried with it the assumption of the risk of injury from such cause; but this court held that the burden of proof was upon the railroad company to prove that the plaintiff knew of the incompetency of the conductor and that the reputation of the conductor for incompetency and negligence among his fellow-employes was not notice to the plaintiff, but that the defendant must show that the plaintiff had knowledge of such reputation. The issue in that case and this involves the same proposition; that is, the assumption by the servant of known danger. In this case it devolved upon the defendant to prove that plaintiff knew of the defects in the coal chute and it was therefore necessary for it to allege the facts which presented that issue; and, having failed to do so, the court did not err in omitting that issue from the charge. Mayes v. Railway, 63 Iowa 566; Swoboda v. Ward, 40 Mich. 420; Cole v. Railway,67 Wis. 272; Hulehan v. Railway, 68 Wis. 520; Railway v. Tracy, 66 Fed. Rep., 931.

It is unnecessary to go more extensively into the discussion of this question. Our investigation justifies the conclusion that in the States where the burden of proof rests upon the master to prove knowledge of defects on the part of the servant, the burden of pleading is likewise placed upon him. In our State the rule has been established that the burden of proof upon such an issue rests upon the railroad company, and, for the same reason, it must plead the defense in order to be entitled to prove it.

We find no error in the judgment, and it is ordered that the judgments of the District Court and Court of Civil Appeals be affirmed.

Affirmed.