Missouri, K. & T. Ry. Co. of Texas v. Fults , 1915 Tex. App. LEXIS 519 ( 1915 )

WILLSON, G. J.

(after stating the facts as above). The contentions presented by the assignments are believed to be without merit. They are as follows:

1. That the trial court erred in overruling appellant’s exceptions to appellee’s petition on the ground: (1) That it appeared from allegations that appellee “was guilty of negligence which caused or contributed to cause his injuries”; and (2) that it did not appear from allegations therein “whether the plaintiff was an employe of the defendant at the time of the alleged accident.”

2. That in the fourth paragraph of his charge the trial court erroneously assumed the fact to be that appellee at the time he was injured was appellant’s employe.

3. That the trial court erred in overruling appellant’s motion for a new trial:

(1) “Because the injuries, if any, plaintiff sustained were caused by his own carelessness and want of ordinary care for his own safety in going upon the cars upon the top of the car from which plaintiff fell, and undertook to travel on and across the top thereof, and the care less manner in which the plaintiff went upon and across the top of said car;” and (2) “because all of the evidence shows that if there was ice. placed on what is known as the icing platform at or near the place where the plaintiff is alleged to have been injured, which ice on the platform obstructed plaintiff’s passway or prevented him from walking down said platform to the place where he was intending to go just before the accident, and the ice was placed there under the orders and directions of J. B. Murphy, who is shown by all the evidence' to have been an independent contractor, for whom the plaintiff was at work at the time of the alleged accident, and the ice was not placed on said platform under the direction or supervision of the defendant, and the plaintiff, in leaving the icing platform and going upon the top of the string of cars that had been placed at the icing bent for using, assumed the risk of any and all the injuries he might sustain by reason of going over and across the top of said cars.”

The judgment is affirmed.