Thornhill v. Kansas City, M. & O. Ry. Co. of Texas , 1920 Tex. App. LEXIS 770 ( 1920 )

Appellant sued the appellee, railway company, for damages for personal injuries. He alleged that at the time of the injuries he was in the employ of appellee as machinist's helper, and in the course of his duties was called upon to assist in repairing a locomotive engine, which required the handling and lifting of the heavy main and side rods from the engine, and that the appellee had negligently failed to provide a reasonably adequate force of men to perform that work, but that he and the machinist were compelled to do the same without help or assistance. Appellee answered by general denial, and specially pleaded assumed risk and contributory negligence.

The court submitted the case upon special issues, in response to which the jury found that the railway company was negligent in failing to furnish an adequate force of men, but that the appellant was guilty of contributory negligence and also of assumed risk, and that, after allowing for his own negligence, appellant was damaged in the sum of $400. The evidence upon these issues is conflicting, there being testimony on the part of appellant and his witnesses that the work in question required the services of from four to six men, the rods being very heavy, and that two men were a wholly inadequate force. On the other hand, there was testimony that, although several men were usually and ordinarily employed for such work, it was frequently done with only two men, and that it could be done by two men with reasonable safety to themselves. The machinist and the appellant were doing this work at night, and it seems undisputed that the fact that it was being done by only two men was known to the foremen, who were their superiors and charged with the duty of providing assistance, if it were required. Judgment was rendered by the trial court for appellee, upon the verdict of the jury. There are no briefs on file for appellee.

The first two assignments of error raise the point that the court should not have submitted the issue of assumed risk, which was seasonably objected to, and that the court should have granted the motion to set aside the verdict of the jury, because under the undisputed testimony the defense of assumed risk was not available to appellee. In view of the testimony of the witnesses Ringler, Bennett, and White, we cannot agree that the undisputed evidence shows that the foremen knew the work was being done by an insufficient and inadequate force. It may be conceded that they knew that only the machinist and appellant were doing this work, but it does not follow, in view of the testimony, that they knew such was an inadequate force. Therefore these assignments are overruled.

The third assignment of error complains of the action of the trial court in refusing to submit to the jury appellant's requested special charge No. 3, which was as follows:

"Even though you shall find from the evidence in this case that the plaintiff knew that two men was an insufficient force with which to do the work in which he was engaged at the time he claims to have been injured, and appreciated the danger incident to doing such work with such insufficient force, yet you are instructed that he did not assume the risk of injury from doing the work with such insufficient force, if you find and believe from the evidence that the superior officer of the defendant, intrusted with the duty of providing an adequate force of men for such work, knew that the same was being done by an inadequate force, and if you find from the evidence that such superior officer knew of such insufficient force, then, in that event, you will answer special issue No. 4, ``No.'"

In charging the jury upon the issue of assumed risk, the court gave this explanatory charge:

"In determining your answer to this question, you are instructed that the plaintiff assumed the risk of the injury which he suffered if he knew that he was working with an insufficient force of men, and knew, or must necessarily have ascertained in the course of his duties, the danger incident to such work with such insufficient force, and an ordinarily prudent man would not have continued in the work he was then doing with knowledge of such insufficient force and the danger thereof. If you find from the evidence either (a) that the plaintiff did not know, or must not necessarily have ascertained in the course of his duties, the danger incident to doing the work in which he was engaged with two men, or (b) even if he knew of the insufficient force and the danger, that a person of ordinary care would have continued in the work he was then doing, then you will answer the foregoing question, ``No.'"

Article 6645, Revised Statutes, provides that in an action by an injured employé, where the ground of the plea is knowledge or means of knowledge of the defect and danger causing the injuries, the defense of assumed risk shall not be available to a railway company in the following cases: (a) Where the employé had informed his superior, intrusted with authority to remedy or cause to be remedied the defect; or (b) where such superior already knew of the defect; or (c) where an ordinarily prudent person would not continue in the service with the knowledge of the defect and danger; and in such case it is not necessary that the employé give notice of the defect. This statute has been held applicable in a case with similar facts. Railway Co. v. Shelton (Com.App.) 208 S.W. 915. The main charge of the court ignored an important element of the statute, namely, the case where the superior of the employé already knew of the defect and danger; and, as the issue was submitted, appellant was deprived of the benefit of this provision of the statute. The court in effect charged the jury that if the appellant did not know of the danger incident to doing the work with only one helper, or if he knew of the insufficient force and danger, yet, if a person of ordinary care would have continued in the work, the question should be answered, "No," and the defense of assumed risk weald be unavailable to appellee.

The jury was not charged, as expressly provided by the statute, that the defense would not be available to appellee if appellant's superior already knew of the defect, independently of whether a reasonably prudent person would have continued in the work. This seems to us to be the plain meaning of the statute, and, as the special charge requested presented this phase of the law, it was reversible error for the trial court to refuse to give it. As submitted to the jury, the doctrine of assumed risk was too restricted, in view of the terms of our statute, and the appellant was deprived of a substantial right, which necessitates the reversal of this case.

Appellant also complains at the refusal of the trial court to change the jury that the burden of proof was on the appellee to establish its defense of assumed risk by a preponderance of the evidence. Following the submission of the issue of assumed risk, the court charged the jury that the burden of proof was upon the plaintiff to make out his case by a preponderance of the evidence, and refused a charge requested by appellant that the burden of proof was upon the appellee as to assumed risk. We think the burden on this issue was upon appellee, and that the court should have so instructed the jury. Railway Co. v. Scott, 160 S.W. 432; Railway Co. Parks, 97 Tex. 134, 76 S.W. 740; Railway Co. v. Shieder,88 Tex. 152, 30 S.W. 902, 28 L.R.A. 538; Railway Co. v. Kendall, 78 S.W. 1081; Railway Co. v. Houston, 185 S.W. 919. For this reason also the case will be reversed.

In view of the probability if another trial of this case, although it is not necessary to decide the question, especially in the state of the record, we think it proper to suggest the query whether, in a case with such facts as here appear, the defense of contributory negligence would be available at all, where the issue of assumed risk is submitted, and there is a finding that the employe did not assume the risk. This question is suggested because of the statement in the opinion of the Supreme Court in Railway v. Mathis, 101 Tex. 342, 107 S.W. at page 535, and by the Court of Civil Appeals for the first district, in Rice v. Lewis, 59 Tex. Civ. App. 273, 125 S.W. 961, to the effect that the Legislature has practically abolished the distinction between assumed risk and contributory negligence by the enactment of the assumed risk statute. The language of Judge Gaines in the Mathis Case was as follows:

"As pointed out in the case of Tex. Pac. Ry. Co. v. Bradford, cited above, between the doctrine of assumed risk and contributory negligence as applicable to such case, in contributory negligence the question usually arises: What would a prudent man have done under the circumstances? If a prudent man under the exigences of the case would have taken the chances and acted as plaintiff acted, he is acquitted of negligence. If he assumes the risk, the question of contributory negligence does not arise, for by his assumption of the risk he absolutely precludes himself from a recovery for any injury that may result to him from such risk. Our Legislature had this distinction in mind when they passed the act approved April 24, 1905, which practically abolishes the distinction. Section 1 of that act provides, in effect, that assumed risk shall not preclude a recovery, and that ``where a person of ordinary care would have continued in the service with the knowledge of the defect and danger, and in such case it shall not be necessary that the servant or employé give notice of the defect as provided in subdivision 1 hereof.' Laws 1903, p. 386, c. 163."

If the very facts relied upon to constitute assumed risk are also the precise facts claimed to establish contributory negligence, as appears to be the case here, it would seem anomalous to leave available to the defendant the defense of contributory negligence, if there should be a finding against assumed risk. The conclusion that the employé is not chargeable with assumed risk would seem necessarily to require the holding that he is not guilty of contributory negligence, when precisely the same facts are relied upon to constitute the two defenses. There may be circumstances in which the conclusion suggested would not be applicable, but in circumstances such as appear in the instant case we are inclined to think that the suggestion of the Supreme Court in Railway Co. v. Mathis is applicable. As stated, however, we do not think it necessary, or even proper, to decide the question.

For the errors indicated, the cause will be reversed and remanded.

Reversed and remanded.