author: LEVY, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. v. WILKES.
    (Court of Civil Appeals of Texas. Texarkana.
    May 15, 1913.
    On Motion for Rehearing, July 3, 1913.)
    1. Negligence (§ 56) — Proximate Cause of Injury — Violation of Statute.
    Negligence due to the violation of a statute does not give a right of action, unless the violation was the proximate cause of the injury.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 69, 70; Dec. Dig. § 56.]
    2. Negligence (§ 61) — Proximate Cause of INJURY— CONCURRENT CAUSES.
    Where several efficient causes contribute to an accident, each cause, without the operation of which the accident would not have happened, is a proximate cause.
    [Ed. 'Note. — For other cases, see Negligence, Cent. Dig. §§ 74, 75; Dec. Dig. § 61.]
    3. Master and Servant (§ 285) — Master’s Liability for Injuries to Servant — Proximate Cause of Injury — Question for Jury.
    In an action for injuries received by the conductor of a freight train in a collision between the separate sections of the train which had pulled apart, evidence held to warrant the submission to the jury of the question whether the failure of the company to comply with the safety appliance act (Act 31st Leg. c. 26), requiring 75 per cent, of the cars to be equipped with air brakes, was the proximate cause of the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1002, 1003, 1007, 1008, 1016, 1035, 1043, 1053; Dec. Dig. § 285.]
    4. Master and Servant (§ 287) — Injuries to Sebvawl-Orders of Train Dispatcher —Question for Jury.
    In an action for' injuries received by a conductor, evidence held to warrant the submission to the jury of the question whether the conductor was ordered by the train dispatcher to bring in certain “bad order” cars, either directly or under the instructions of the foreman of a wrecking crew.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1034, 1045, 1051, 1052, 1054-1067; Dec. Dig. § 287.]
    5. Appeal and Error (§, 1033) — Harmless-Error — Error Favorable to Appellant.
    Where a wrecking foreman had authority from the dispatcher to order a conductor to-bring in certain cars, error in an instruction, which required the jury to find that the conductor had special orders from the dispatcher to bring in the cars, was favorable to the railroad company.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. §' 1033.]
    On Motion for Rehearing.
    6. Master and Servant (§ 204) — Injuries- - to Servant — Violation of Statute by Servant — Assumption of Risk.
    If the conductor of a freight train voluntarily connects with the train two “bad order” cars, and thereby reduces the number of cars-equipped with air brakes, below the 75 percent. limit fixed by law, he cannot recover for any injury proximately caused thereby.
    TEd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. §.

    Levy, J., dissenting in part.
    Appeal from District Court, Smith County; R. W. Simpson, Judge.
    Action by U. T. Wilkes against the-St. Louis Southwestern Railway Company. Judgment for the plaintiff, and defendant appeals.
    Reversed and remanded, on rehearing.
    Appellee received bodily injury while in the service of appellant as conductor operating a freight train. The train, at the time of the injury, was made up, and in the order of an engine and tender, merchandise car, the six cars composing the “wrecking outfit,” a coal hoist, coal car, three box cars, caboose, and box car, making 14 ears besides the tender. The coal hoist was on two trucks and was an old one,- and was chained up at both ends to the train. The three box ears ahead of the caboose, and the box car behind the caboose, were bad-order empty cars, being carried to the car shop for repair; two of them had been damaged in a wreck, and the other one had the drawhead pulled out. The car just ahead of the caboose was the one that had a drawhead out, and it was held to the rear end of the car - ahead of it by means of chains. Appellant’s foreman of the wrecking crew and several of his crew, besides the train crew, were on the train. As the train was approaching the station of Murchison the engineer whistled for the station, and the conductor signaled him not to stop, but go on, and the engineer answered the signal by a whistle. Immediately after the engineer answered the signal there occurred a violent jam, or impact, of the cars, doing considerable damage to the coal hoist and the bad-order ears. Appellee at tlie time was riding in the cupola of the caboose, and by reason of the jar incident to the collision.he was thrown from the cupola to the floor, receiving severe and grievous injury, Immediately after this collision several of those on the train examined the cars and the situation on the ground. The testimony of these witnesses agreed that the collision occurred by reason of a separation of the train line into two parts, and such rear end running into the head end as it slowed up for Murchison. This conclusion is warranted by the evidence, for the reason that the violent impact of the cars as shown was not likely to have resulted except from a separation of the train into two parts. It does not appear that any of the crew saw or knew of any separation of the train line at the time, and this is accounted for as being due to the darkness of the night. The condition of the cars, and the situation on the ground after the collision, sufficiently indicated that the train line became separated into two parts in transit, either between the two ears ahead of the caboose by reason of the chain that held such cars together becoming unhooked, or at the coal hoist by reason of the disarrangement of the chain that held it to the next car. The testimony shows that the hooks were placed in the links of the chain without being tied therein, and that the slack in the chain had worked the hook out of the link or disarranged it. The facts show that less than 75 per centum of the cars in the- train were equipped with air brakes connected up and working. The facts are given in more detail hereinafter. Appellee pleaded as grounds of negligence on the part of appellant proximately causing the injury: (1) “To operate and cause to be operated a train composed such as was the train in which this plaintiff was in charge, in this, to wit, that it was a violation of the rules and regulations of defendant to handle in the same train bad-order cars and merchandise freight cars”'; and (2) “to operate and cause to be operated a train over its said line insufficiently equipped with air, in that less than 75 per cent, of the cars of said train were equipped with power-—or train brakes, commonly known as air brakes”; and (3) “in the manner in which bad-order cars were incorporated in said train, in this, to wit, that the chains and fastenings in lieu of drawheads were insufficient and not securely fastened.” The court submitted to the jury for finding of negligence the grounds of the petition numbered 2 and 3. The appellant pleaded general denial, and specially pleaded contributory negligence and assumed risk. The trial was to a jury, and a verdict was rendered in favor of appellee. The facts warrant a finding, as involved in the verdict, that appellant was guilty of negligence, in either or' both grounds of negligence pleaded proximately causing the injury, and that appellee did not assume the risk, and the amount of damages is warranted by the evidence.
    E. B. Perkins and D. Upthegrove, both of Dallas, and Marsh & Mcllwaine, of Tyler, for appellant. Lasseter & Mcllwaine and N. A. Gentry, all of Tyler, for appellee.

      For other eases see same topic and section. NUMBER In Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   LEVY, J.

(after stating the facts as above).

The court charged the jury that: “The law. provides that 75 per centum of the cars in trains, such as the one in question, shall be equipped with power or train brakes. Now if you shall find thaf75 per centum of the ears in the train at the time of the injury, if any, to plaintiff were not equipped with power or train brakes, and if you find that such fact, if you- find it to be a fact, directly and proximately caused or contributed to cause the caboose in which plaintiff was Tiding to run into the other portion of the train from which it had been separated,” etc. It is the claim of appellant by the first assignment of error that the failure to have 75 per centum of the cars equipped with power or train brakes was not the direct and proximate cause of the collision, and that therefore it was error to submit the issue as to whether the cars were so equipped. It is the rule, supported by the weight of authority, that while one who violates a statute may be regarded as a wrongdoer, and the act regarded as negligence, still it may or may not be the proximate cause of the injury complained of, according to the facts of the particular case. Negligence cannot create a right of action unless it is the proximate cause of the injury complained of by the plaintiff.

However, as said in Ring v. City of Cohoes, 77 N. Y. 83, 33 Am. Rep. 574, upon a negligent happening, “where several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes; but it cannot be attributed to a cause unless without its operation the accident would not have happened.” And such is the rule of the authorities.

In the present case it appears to be true that as the train was approaching the station of Murchison there occurred a violent jam, or impact, of the cars somewhere in the rear part of the train ahead of the caboose, throwing appellee out of his seat in the cupola of the caboose to the floor, and he was thereby injured. The crew, who testified as witnesses, all account for the cause of the impact as being a separation of the train in transit into two parts, by reason of the chain that held two cars together, in lieu of drawheads, becoming unhooked, or disarranged, and the separated rear end running into the head end as it slowed up for the„station. And upon all the facts stated by the witnesses the jury would have been fully authorized to find a negligent arrangement of the chain by the wrecking crew, charged with the duty by appellant to securely arrange same. It further appeared from the evidence that the train consisted of 15 cars, including the tender of the engine; and, to meet the quantum of air brakes which must be carried in all trains of the kind here under the safety appliance act (Acts 31st Leg. c. 26) of this state, it was necessary that 12 of the cars be equipped with air brakes, assuming for the moment that the tender should be regarded as a car in such train line. There is sufficient evidence to show a failure to have as many as 12 of the 15 cars' equipped with air brakes and connected up and working air in the train line ahead of the caboose. There is proof that if air brakes had been working on 12 cars next to the engine, and a. separation of any of the 12 cars occurred, the breakaway in the train line would have caused the brakes on that portion to automatically set and stop the cars, and a serious collision would not have happened. Thus it would appear from the evidence that, although the separation of the train into two parts was by reason of the chain that held two cars together in the train becoming unhooked or disarranged, nevertheless the violent impact causing the injury would not have happened if the safety appliance act had been complied with. And it would not be in the province of the court to refuse to submit to the jury for them to determine whether the failure to equip 75 per centum of the cars with power or train brakes was an efficient cause of the injury, if the breakaway occurred between any of the 12 cars next to the engine in the train line. It can here be stated, in order that the contention be made clear, that the appellant insists that the evidence establishes that the breakaway occurred between the twelfth, and thirteenth cars, and that therefore the collision would have occurred even had the air on the 12 cars next the engine been connected up and working as required by law, and consequently the failure to comply with the terms of the law had nothing to do with the happening of the injury. The happening of the separation, or between what cars it occurred, was not seen or known of by the witnesses at the time or before the impact, and it rests in the opinion of the witnesses between what particular cars it first occurred, based on an examination of the ears and their condition and situation as it appeared after the collision. It was in the nighttime,, and too dark to see a separation at the time, they say. Thus an explanation of the condition and situation of the cars, found immediately after the collision, together with the opinion of the witnesses in respect to the particular point of separation in the first instance, constitutes the evidence upon which it must be determined between which cars the separation occurred. The detailed description of the situation after the collision in some material respects makes it | obscure and uncertain as to whether the separation first occurred between the twelfth and thirteenth cars, or between the coal hoist car and the car next to it, which was between the ninth and tenth cars. While the opinions of the witnesses, being expert in such matters, are entitled to ,weight, still such opinions are not conclusive, and must be considered along with all the facts detailed. And the opinion of the witness Woodall was conflicting with the opinion of the others.

It is not at all necessary to set out in detail all the evidence. We advert to the evidence of the foreman of the wrecking crew, who described the condition and situation found immediately after the collision, as being the more full and clear statement. He says he found the train separated both at a point between the coal hoist car and the coal ear next it, which would be between the ninth and tenth cars, and at a point between the two box cars ahead of the caboose, which would be between the twelfth and thirteenth cars. The train was. connected up and unbroken, he further says, from the engine to include all six cars of the wrecking outfit. The coal hoist car, which was next in the train to the last ear of the wrecking outfit, was, he says, chained up to the last car of the wrecking outfit, but between the coal hoist car and the coal car the trucks of the coal hoist had slid out from under the center pin, and the center plate had come off, and the chain that was wrapped around the center plate and used-to transport the car had come out and was parted, though hooked together, which “made the cars about five or six feet apart.” The car behind the caboose and the car immediately in front of the caboose were connected up, but unconnected with the other cars; the distance of separation is not undertaken to be given by this or any witness, only that the car ahead of the caboose was not connected up- with the ear ahead of it. On the car ahead of the caboose the chain used to pull the car was found, the foreman says, unhooked and down on the ground, and there were evidences on the ground of where it had dragged for a distance of two miles. And upon the whole of the situation the foreman concludes that the breakaway first occurred on the car ahead of the caboose. The fact of the chain dragging two miles wou!4 be a strong circumstance, but not conclusive, for it is not probable that if the chains had been entirely disconnected the cars would have followed for two miles unless downgrade all that distance, and it does not appear from the evidence that it was downgrade. But notwithstanding the foreman had a belief as to the point of separation before collision, he,admits that “I don’t know which end broke in two first,” and that is also true as to the other witnesses, for none of them saw or knew of the separation. As the location of the particular point of separation that caused the impact rests entirely in inference from the circumstances, both from the standpoint of appellant and of appellee, it could not be said, we conclude, that it was so conclusively established that the separation first occurred between the twelfth and thirteenth ears as not to make it a matter of fact for the jury, as done by the court. We are also of the opinion, as a reason why the assignment could not be sustained, that appellee’s contention has merit that the court would not be warranted, in order to determine the proximate cause of the injury as matter of law, in assuming that appellant could comply with the law and equip 75 per centum of the cars with air brakes, without having the caboose connected up with air, for there was evidence going to show that it was impossible to connect air on the coal hoist and the two cars immediately in front of the caboose.

The court further instructed the jury, in connection with the charge in the first 'assignment, to the effect that appellee did not assume the risk resulting from the failure of Rhoderick to see that all of the cars in the train that could be equipped with power or train brakes were so equipped or connected up, and was not guilty of contributory negligence, upon the finding by them that the appellee was instructed by the chief dispatcher to bring in all cars directed by Rhoderick to be brought in, and that Rhoderick instructed appellee to put into and carry in the train certain cars at Athens, and that it was Rhoderick’s duty to see that all cars that could be equipped with power or train brakes were so equipped or connected up with air. By the second assignment the point made against the charge is that there was no evidence that appellee was instructed by the chief dispatcher to bring, in his train to Tyler, all cars directed by Rhoderick, or that Rhoderick instructed the appellee to put into and carry the bad-order cars picked up at Athens, and it was error to submit such issue to the jury. Rhoderick was appellant’s wrecking boss or foreman, and when on the road with his wrecking outfit, as here, it was in his line of duty to work on or repair bad-order cars found on the road, and to have transported to the shops for repair such cars as could not properly be fixed on the road. He testified that was his method of work and instructions. It was further his duty, when a bad-order car without a drawhead was to be incorporated into the train, to see that it was properly chained up. There is a sharp conflict of evidence between the appellee and Rhoderick as to whether, when a train is carrying the wrecking outfit, the conductor is subject to the orders and direction of the wrecking foreman as to the incorporation of bad-order cars into the train to be transported to the shops for repair. And the decision of the point of the assignment largely depends upon the authority of Rhoderick and the character of this particular train to properly determine the duties that the conductor was expected to perform on that train. If Rhoderick had the authority, which was an issuable fact, to direct the carrying of the three bad-order cars in that train to the shops, then there was sufficient evidence to warrant the simple issue that Rhoderick instructed appellee to put into and carry the bad-order cars picked up at Athens, for the evidence admittedly shows that Rhoderick asked appellee to do so; and, if Rhoderick had authority over the conductor to direct that his cars be carried to the shops, the effect of the conductor’s yielding to the request was equivalent to obedience to authority.

And, moreover, if Rhoderick had authority over the conductor to direct the carrying of the bad-order cars to the shop on that train, then to further require appellee to show special instruction from the chief dispatcher, as was the effect of the court’s charge, to carry such cars in the train, before appellee would be relieved of either assumed risk or contributory negligence in so doing, would not be a matter that appellant could well complain of as working injury. But if the question must depend upon authority from the dispatcher, and upon the construction that appellee could give to the orders of the dispatcher in respect to his duties as conductor of that particular train, there is room in the evidence to warrant the court in leaving that issue to the jury, we think, and the particular objection to the charge in this respect must be overruled for want of any evidence. The day before the present injury a wreck had occurred south of Athens, and Rhoderiek was sent with his outfit from Tyler to clear the track; he also carried a new coal hoist that was intended to be installed at Corsicana in place of an old one at that place. After the wreck had been cleared he proceeded to Corsicana, and in the afternoon installed the new coal hoist; the old one, having been taken down, was chained by him to the rear of his wrecking outfit. Rhoderick then sent the following telegram to the superintendent: “The coal hoist has been put up and old one with wrecker chained up; wrecking outfit ready to go to Tyler and work all bad-order cars empty going north, and also use same crew on return. Will leave Corsicana at 7 a. m.” It was explained that to “work” all bad-order cars was understood to mean, in railway parlance, to repair all such cars on the line that could be repaired there, and to carry to the shops for repairs all such cars that could not be properly repaired on the line. Rhoderick had been advised by the superintendent’s office, where bad-order cars were located. After Rhoderick had sent his telegram it became necessary to get another .crew, because of the 16-hour law, to pull the wrecking outfit back to Tyler, in place of the crew that brought it out of Tyler. With this intention the chief dispatcher, having authority from the superintendent to act addressed jointly to Rhoderick, the agent at Corsicana, the yardmaster, and the conductor of No. 34, the following message: “Arrange to give No. 34 the wrecker, and do not give him any dead freight or empties. Conductor will allow Foreman Rhoderick to repair bad-order cars on line and cut out other work that is not absolutely necessary.” Appellee was the regular conductor on one of appellant’s freight trains known as “34,” and knew of the telegram Rhoderick had sent. The dispatcher testifies that he did not design by the telegram to run the train as the regular 34, a local, but as an extra to carry the wrecking outfit and to enable the wrecking crew to repair bad-order cars on the line. There is testimony that three merchandise cars were put into the train at Corsicana by subsequent telegram specially to that effect from the dispatcher, but the dispatcher disputes this. So, considering the purpose of running the train and of what it should consist from the standpoint and intention of the dispatcher, the jury could reasonably conclude that the train was virtually designed and intended to be run merely as an extra work train back to Tyler. And even if the jury believed that the dispatcher specially directed the incorporation of the three mechandise cars, so as to make it partly a revenue train and partly a work train, the conclusion could be reached by the jury, and is reasonably warranted, nevertheless that the carrying of these merchandise ears was incidental, and that the train wa’s designed to be run especially and principally as an extra, and not as a regular, to carry back the wrecking outfit and perform all the duties that such character of train on the lino would be expected and required to do. And if there was warrant in all the circumstances, which would have to be considered, we think, for the finding by the jury that the order to the conductor directed him to operate that train in the character of an extra work train, and that the conductor could reasonably have contemplated that it was expected of him to perform such duties and do such things in the operation that were usually done by that kind of train, then the regular rules governing what conductors shall do about the operation of regular schedule and revenue trains would not govern as conclusively establishing the authority of the conductor under the telegram as to this particular train, which was not covered by such rules. Looking only to a part of the telegram, it does say that the conductor “will allow Foreman Rhoderick to repair bad-order cars on the line.” But the telegram does not in terms say that such bad-order cars shall not be carried to the shops. And therefore, to determine the scope of the conductor’s authority, the whole telegram should be considered, and in thé light of the circumstances interpreted. And when the telegram is read as a whole, and in the light of Rhoderick’s telegram to the dispatcher, and his previous advisement of where bad-order cars were located, and the purpose of running the extra, and what was usual for such character of train to do about bad-order cars, the conclusion might reasonably be reached by the jury that the instruction of the dispatcher, not only meant for the conductor to run the train as an extra work train, but that there was included authority for the usual carrying in to the shop of bad-order cars. The sentence “will allow Foreman Rhoderick to repair bad-order cars on the line” might be considered, in the light of all the facts, as being not restrictive of all the duties about bad-order ears to be performed, but merely as an additional special direction above and besides the usual things to be done. We cannot say there is no evidence for the jury, and the assignment is overruled.

By the third assignment the court’s charge is complained of. The court further charged the jury, in connection with the charge complained of in the first and second assignments, as follows: “If, however, you shall find * * * it was, under all the facts and circumstances in evidence, plaintiff’s duty on the occasion at Athens to see that 75 per centum of the cars in the train when it left Athens were equipped with power or train brakes, then if you find that the plaintiff voluntarily incorporated certain cars in the train at Athens, which left the train with less than 75 per centum of the cars in said train equipped with power or train brakes, or if he instructed Rhoderick not to equip the cars incorporated in the train at Athens with power or train brakes, and if Rhoderick failed to so equip cars under plaintiff’s instructions, and thereby the cars in the train were equipped with less than 75 per centum of power or train brakes, and if you find that such failure, if any, to so equip said train caused or contributed to cause the collision, and plaintiff was injured thereby, then you are instructed he was guilty of contributory negligence; or, * * * if you have found it was plaintiff’s duty to see that 75 per centum of the cars in the train when it left Athens were equipped with power or train brakes, and if plaintiff knew, or if by that circumspection which an ordinarily prudent and cautious person would use in the performance of his service under the same or similar circumstances, would have known, that said train was not equipped with 75 per centum of power or train brakes, and if he knew the danger, if any, incident to operating the train so equipped, or ought to have known of such danger, if any, by that circumspection in the performance of his duties which an ordinarily prudent and cautious person would ha've used under the same or similar circumstances, and a person of ordinary care would not have continued with said train so equipped, he assumed the risk of so continuing with the train, and cannot recover on the ground that the train was equipped with less than 75 per centum of power or train brakes at the time of the collision.’' The point made against the charge is to the effect that, as appellee was charged with the duty under the rules to see that the terms of the safety appliance act were complied with in the operation of the train, he was the agent of appellant for the purpose of seeing that the law was complied with, and that his incorporation of, or causing’to be incorporated, cars into the train, whereby the quantum of the braking power of the train was reduced below the minimum prescribed by the statute, operated to be a violation of the statute by him, and not by the company against him, and as a consequence he could not recover, and therefore it was error to hold appellee only to contributory negligence and to assumed risk. The charge of the court undertakes to have the jury measure the acts and conduct of the conductor in two respects, and charges him with responsibility therefor if found to have been that way: First, if the conductor was required by the rules before operating the train to see that. 75 per centum of the cars in the train were equipped with air brakes, and not to incorporate cars into the train if not so equipped, if by so doing it reduced the per centum below 75, and he voluntarily incorporated the two unequipped bad-order cars at Athens, whereby it did reduce the prescribed legal number in that train; or, second, if he instructed Rhoderick not to connect up the air hose around the cars to the caboose, and either of these acts of the conductor caused or contributed to the injury — he was held by the charge to be guilty of contributory negligence. The assumed risk portion applied the feature of knowing the fact that only a part of the train — less than 75 per centum — was connected up with air, and the danger arising from the operation of a train with only a portion thereof having the air connected up. The charge in the light of the evidence submitted issues made by the evidence.' The coal hoist ear and the two bad-order cars taken into the train at Athens had no air brakes on them at all, and the air was connected up and working from the engine to the end of the wrecking outfit, but was not connected up and working on the other part of the train, though there was no hose for the purpose. The evidence is conflicting as to whether the conductor ordered Rhoderick aot to so connect the air hose from the wrecking outfit around the bad-order cars is to reach the caboose. Thus there was a failure to have 75 per centum of the cars in the train ahead of the caboose equipped with air brakes, and there was the further Eaet of operation of the train partly connected up with air. The blame therefor is to be determined. Clearly in the facts the train was run in violation of the safety appliance act. And the blame for the cause that resulted in the violation of the law is traceable, either to the incorporation into the train of the merchandise cars, which made the statute at all applicable to that particular train, or to incorporating the two bad-order cars into the train at Athens, whereby the ■ quantum of required braking power of the train was reduced below the minimum. The act of incorporating the merchandise cars into the train was by direct order of the dispatcher, as the testimony for appellee went to show; and the incorporation into the train of the two bad-order cars at Athens could reasonably be said by the jury, from all the evidence, to have been in the performance of duties expected of the conductor to do on that particular train which was being operated for the purposes it was. The fact that the two cars had no air brakes at all on them, by reason of their wrecked condition, would riot be chargeable to the conductor. And the further fact that the two cars in such condition were to be incorporated into that train by the conductor as a part of the duties to be performed is a circumstance to lie considered in determining the responsibility between master find servant for the violation of the law. Therefore, if the blame for the running of that train in violation of law is traceable, as between master and servant, either to the act of incorporating into the train the merchandise car, or to the act of incorporation of the two bad-order cars having no brake equipment, the appellant would not in the facts be relieved of the responsibility for the injury proximateiy caused by the violation for the appellee was strictly in performance of duties required in the furtherance of actual operation of that train. The act in effect imposes absolute liability upon appellant by providing that the doctrine of assumed risk and of contributory negligence shall not be available as defenses where there is a violation on the part of the railway which contributes to the injury. Article 6646, Rev. Stat. On the other hand, if connecting up the air to the caboose by running the hose around the coal hoist and two bad-order cars would have operated to be a practical means of safe operation of the train, and the hose was at hand for such purpose, and the rules of the company required the conductor to see that the air hose was connected up, and he negligently failed to do so, and such negligence was a concurring cause with the violation of the law on appellant’s part, the defense of contributory negligence might be available. And likewise, if the conductor caused the train to be operated partly connected up with air, and a part not connected up that could have been, and he appreciated the danger arising from the operation, and the danger was such that a person of ordinary prudence would not have taken the risk, he might he held to have assumed the risk. But in either event the obligation owing on the part of the conductor is by virtue of the rules imposing the duty, and the furnishing of the appliances by the appellant for the safety of the operation. It was such phase of the case, we think, presented by the evidence, that the court was having the jury determine. And in this ease these were properly matters for the jury. The assignment is overruled.

We have carefully considered all the remaining assignments, and have reached the conclusion that they should be overruled.

The judgment is affirmed.

On Motion for Rehearing.

The motion has been carefully considered, and the conclusion reached by a majority of the court that the facts of the ease made it error to hold that no reversible error was presented by the third assignment of error, complaining of the court’s charge. It is believed that the court’s charge was error in holding appellee only to contributory negligence or assumed risk. If appellee voluntarily incorporated into the train at Athens the two bad-order cars, and thereby the braking power of the train was reduced below the 75 per centum prescribed by law, appellee would be precluded of any recovery for an injury proximately caused by such violation of the law on his own part, and the jury should have been in effect so told by the court.

The writer does not agree to the effect given the evidence by the majority, and hence thinks the charge should not be deemed misleading and prejudicial.

According to the views of the majority of the court, the motion should be granted, and accordingly the judgment is reversed and cause remanded, and it is so ordered.


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    BENNETT v. GULF, C. & S. F. RY. CO.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 7, 1913.
    Rehearing Denied July 5, 1913.)
    1. Courts (§ 91) — Precedents—Decisions os- Higher Courts.
    Regardless of the inclination of the members of the Court of Civil Apoeals, that court will follow a decision of the Supreme Court, the effect of which has not been destroyed or weakened by later decisions, although vigorously criticised by text-writers and out of harmony with the decisions of other states.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§, 313, 325, 326; Dec. Dig. § 91.]
    2. Master and Servant (§ 129) — Liability for Injuries — Proximate Cause.
    The negligence causing a fire was not the proximate cause of the death of an employe, caused by injuries sustained while fighting such fire.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.]
    3. Trial (§ 142) — Questions oe Law or Fact.
    Whenever the evidence reasonably authorizes an inference supporting a material issue necessary for a recovery, it is the duty of the court to submit the issue to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 337; Dee. Dig. § 142.]
    4. Negligence (§ 136) — Questions for Jury.
    The issues of a defendant’s negligence, and the proximate cause of an injury on account of which a recovery is sought, are nearly always questions for the jury, and never become questions of law for the court, when there is evidence of probative force in support of the issue.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.]
    5. Master and Servant (§§i 285, 286) — Actions for Injuries — Questions for Jury.
    Where there was evidence that an employe, inexperienced in fighting fire, was directed by his superior, whose command it was his duty to obey, to enter a superheated and flame-swept area, and endeavor to quench and prevent a further spread of the flames, that no warning was given him, except that he should come out when he got too hot, that after his entrance within the influence of the heat cold water was thrown upon him, which possibly served to deceive him and caused him to remain too long, and that he received injuries from the fire and from inhaling smoke and flame, resulting in his death, it was a question for the jury whether the employer was negligent, and whether such negligence was the proximate cause of his death.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §■§ 1001-1003, 1006-1008, 1010-1016, 1017-1035, 1036-1044, 1046-1050, 1053; Dec. Dig. §§ 285, 286.]
    6. Master and Servant (§§ 101, 102) — Liability for Injuries — Unsafe Place to Work.
    It is the duty of the master to exercise at least ordinary care to provide his servants with a reasonably safe place to work, and not to expose them to unknown and unappreciated hazards.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.]
    7. Master and Servant (§ 217) — Liability for Injuries — Assumption of Risk.
    A servant assumes dangers that are obvious, or of which in the necessary discharge of his duties he must know, but does not assume. without due warning, unknown and unappreciated dangers.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.]
    Appeal from District Court, Johnson County; O. L. Lockett, Judge.
    Action by Mrs. Lillie M. Bennett, adminis-tratrix, against the Gulf, Colorado & Santa Fé Railway Company. From a judgment on a directed verdict for defendant, plaintiff appeals.
    Reversed and remanded.
    Stone & Wade, of Ballinger, and S. C. Pad-elford, of Cleburne, for appellant. Lee & Lomax, of Ft. Worth, and Brown & Lockett, of Cleburne, and Terry, Cavin & Mills, of Galveston, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CONNER, C. J.

The appellant, Mrs. Lillie M. Bennett, administratrix of the estate of Howard C. Bennett, deceased, instituted this suit as such administratrix and in her own right and for the use and benefit of their minor children, to recover damages for the death of said H. C. Bennett, alleged to have been caused by the negligence of the appellee railway company. The pleadings are voluminous, but we think for the purpose of our disposition it will be sufficient to state them briefly. In substance, it was alleged that in August, 1912, the defendant corporation was operating a line of railway, and as incident thereto owned and maintained, in the town of Cleburne, Johnson county, certain machine shops, roundhouses, numerous storage tracks, upon which were located a large number of oil tanks, oil tank cars, coaches, box ears, a large amount of lumber, and other material, all of which was closely related, and all of which was highly inflammable, and of very great value; that on or about the 12th day of said August an employs of the defendant company descended with a burning light through a manhole into a certain oil car, situated upon one of the switch tracks, and contiguous to the inflammable material mentioned; that said oil car, because of negligence in those whose duty it was to properly clean it, contained oil and gas which, coming in contact with the light of the employ® descending through the manhole, exploded, threw burning oil and gas upon the adjoining inflammable material, thus causing a very great fire; that the said H. 0. Bennett was at the time an employ® of the defendant company, and in obedience to a warning immediately given, and to a rule of the company so requiring, as well also as to a personal command of the defendant’s superintendent and fire chief, entered into the zone of the fire so created, and received burns and injuries from which he later died. It was alleged that the negligent origin of the fire was a proximate cause of his death. It was also alleged that the said Bennett was inexperienced in fighting fire, and ignorant of the danger in coming in close proximity to and in contact with such a fire as was raging at the time; that he was not warned of such danger at the time that he was ordered into it; that after entering within the influence of the fire as he did, cold water was thrown upon him, which tended to deceive him, and cause him to remain longer under its influence than he otherwise would, and it was charged that the act of the superintendent and fire chief, in ordering him into the fire under the circumstances, constituted negligence which proximately resulted in the death of said Bennett. Upon the conclusion of the evidence the court gave a peremptory instruction in appellee’s favor, and, the verdict and judgment being in accordance with the instruction, the case is now presented to us upon the errors assigned.

It is in effect conceded, as indeed we think it must be, that the evidence raised the issue of a negligent origin of the fire; but, as stated to us on the submission, the court upon the authority of the case of Seale v. G., C. & S. F. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602, concluded that, even though the issues of negligence should be determined in favor of the plaintiff, the negligence charged could not constitute a proximate cause of the death of said H. O. Bennett, and this, therefore, becomes a material inquiry. The facts in the Seale Case are to the effect that the defendant railway company negligently caused a fire in the accumulated material on its right of way, which was communicated to the grass in an adjoining field and threatened the fence and other property of the owner; that the wife of the owner, and his daughter, about 15 years of age, went to the fire, and the little girl, in attempting to extinguish the fire, was burned to such an extent that she died. The decision, which is exceptionally clear in its treatment of the law on the subject, was to the effect that the negligence of the company - in originating the fire was not the proximate cause of the little girl’s death. In the court’s application of the law to the facts of that case, however, the decision has been vigorously criticised by the author of “Street on Personal Injuries in Texas,” pp. 91, 614, and notes, and expressly' repudiated by the Supreme Court of Illinois in the well-considered case of Ill. Cen. Ry. Co. v. Siler, 229 Ill. 390, 82 N. E. 362, 15 L. R. A. (N. S.) 819, 11 Ann. Cas. 368, which in its circumstances is very similar to the Seale Case. The Seale Case also seems out of harmony with numerous other decisions cited by appellant in the case now before us. But notwithstanding the criticisms referred to, and of the conflict between the decision in the Seale Case and other less authoritative deci-, sions, we have been unable to find any clear expression of our own Supreme Court which destroys or weakens the effect of the case of Seale v. G., C. & S. F. Ry. Co., and we, therefore, regardless of the inclination of some of us to the contrary view, feel impelled to now apply the Seale Case as authoritative. This being true, we see no way to distinguish the ease now before us from the Seale Case in so far as the negligence of defendant company in originating the fire is to be considered. In other words, if the negligence alleged in the Seale Case could not legally constitute a proximate cause of the death of the little girl there burned, we cannot apprehend how the negligence of the defendant company in originating the fire under consideration can be held to be a proximate cause of Bennett’s death, and thus far we feel constrained to approve the trial court’s ruling.

In a further consideration of the case, however, we think we must announce a different conclusion. Whenever the evidence reasonably authorizes an inference supporting a material issue necessary for a recovery, it is the duty of the court to submit the issue to the jury. And the issues of a defendant’s negligence, and the, proximate cause of an injury on account of which a recovery is sought, are in almost every case questions for the jury. They never become questions of law for the court alone, when there is evidence of probative force in support of the issue. See Choate v. S. A. & A. P. Ry. Co., 91 Tex. 409, 44 S. W. 69; Heatherly v. Little, 40 S. W. 445; Jones v. George, 61 Tex. 345, 48 Am. Rep. 280; Mexican Natl. Ry. Co. v. Mussette, 86 Tex. 708-718, 26 S. W. 1075, 24 L. R. A. 642; Temple Electric Light Co. v. Halliburton, 136 S. W. 585.

The question then is, is there any evidence fairly raising an inference of negligence on the part of appellee’s servants in ordering H. C. Bennett into the fire, and if so, whether such negligence was a proximate cause of his ultimate death? We think the evidence does raise these issues, and that hence they should not have been taken away from the jury by the court’s peremptory charge. Appellants insist that the petition upon which the trial proceeded was sufficient to charge negligence in permitting the deceased to remain subject to the intense heat as long as he did, but we hardly feel prepared to adopt this construction of the petition. It is, however, plainly alleged, and there was evidence tending to show that the deceased was inexperienced in fighting fire; that the fire was raging furiously, and the heat very great, when one of the appellee’s servants, whose command it was the duty of the deceased to obey, ordered him to enter a superheated and flame-swept area and endeavor to quench and prevent a further spread of .the flames; that at the time of this order no warning was given him other than that he should come out when he got too hot; that after the deceased’s entrance within the influence of the heat cold water was thrown upon him, which, it is true, experienced fire fighters testified was proper, yet which, perhaps, also, as appellant alleges, served to deceive Bennett, and caused him to remain until he received injuries from the fire and inhaled the smoke and flame, untimately resulting in his death. The circumstances recall the Bible story of Nebuchadnezzar’s rage as recited in the third book of Daniel, over the refusal of three young Israelitish men to observe his command. It is said that he directed his servants to heat a furnace “seven times more than it was wont to be heated,” and commanded the most mighty men of his army to bind and cast into the fiery furnace the young Israelites, and it is further said that “therefore, because the king’s commandment was urgent, and the furnace exceeding hot, the flame of the fire slew those men that took up Shadrach, Meshach and Abednego.” Can it be said as a matter of law that the Babylonian king, in commanding as he did, was duly mindful of the welfare of his servitors? Or that the command was not a proximate cause of the death of those who approached the furnace near enough to cast therein the young men who had so offended the king?

The principles of law to be applied are familiar, and need no citation of authority. It is the duty of the master to exercise at least ordinary care to provide his servant with a reasonably safe place - to work, and not to expose him to unknown and unappreciated hazards. It is true the servant is held to assume dangers that are obvious, or of which in the necessary discharge of his duties he must know, but he does not assume, without due warning, unknown and unappreciated dangers. As stated, the evidence tends to show that Bennett was without experience in fighting fire. He, of course, knew that the fire would burn if he came in contact with it, but he may not have known the danger involved in entering and remaining as long as he did in the intense heat within which he was ordered, especially in view of the circumstance that the heat was rendered less obvious by the constant application of cold water. The evidence tends to show that the deceased was a trusted employs, and that he was faithful is evidenced by the fact that he strenuously continued in the effort to save his master’s property until he was inflicted with his death injuries. We think it was for the jury to say whether, under all of the circumstances the master was guilty of a want of due care or negligence in so ordering, without warning, the deceased to enter the place that he did.

We are also of the further opinion that it should have been left to the jury to determine whether the negligent command of the master was, under the circumstances, the proximate cause of Bennett’s injuries. The general rule is that “when a defendant has violated a duty imposed upon him by the common law, he should be held liable to every person injured, whose injury is the natural and probable consequence of the misconduct, and that the liability extends to such injuries as might reasonably have been anticipated, under ordinary circumstances, as the natural and probable result of the wrongful act.” Seale v. G., C. & S. F. Ry. Co., supra, 65 Tex. 278, 57 Am. Rep. 602. We do not think it can be said as a matter of law that the master, under the circumstances stated, could not have reasonably anticipated injury to Bennett similar to those received. Thus in the well-known case where the defendant threw a lighted squib into a crowd of people, one after another of whom, in self-protection, threw it from him until it exploded near the plaintiff’s eye and blinded him, it was held that the defendant’s original wrongful act of throwing the squib into the crowd was the proximate cause of the plaintiff’s injuries. In the case of Railway v. O’Leary, 136 S. W. 601, a defendant railway company, in negligently jarring and jolting a train loaded principally with fireworks and oil, caused an explosion resulting in a fire. A fire signal was sounded, and a number of the city fire company responded for the purpose of aiding in extinguishing the fire, when an explosion occurred which caused the death of the fireman. It was held that the defendant could have anticipated the response of the fireman, and that he might be thus brought within the range of explosions, and that therefore the ■original negligence in causing the explosion was the proximate cause of the death involved in that controversy. In the ease of Temple Electric Light Co. v. Halliburton, supra, the light company had placed an insulated wire, heavily charged with electricity, near a telephone wire extending into the house of the deceased. The electric wire came in contact with the telephone wire, causing blazes to he emitted, and the deceased, in attempting to cut the telephone wire with iron pinchers for the purpose of preventing a firing of his premises, was killed in the effort. It was held that the company was liable, although the deceased had been warned that it was dangerous to attempt to cut the telephone wire as he did. The approval of the judgment by our Supreme Court, as was done by a refusal of a writ of error, necessarily involved the conclusion that the original negligence of the electric light company was a proximate cause of the death. In the case of Serafina v. G., H. & S. A. Ry. Co., 42 S. W. 142, where the -railway company had negligently caused fire to spread to a man’s house and set it on fire, his wife being thus driven out of the house into the cold, by reason of which she was injured, it was held that the negligent act of the railway company in originating the fire was the proximate cause of the wife’s injury. In Railway v. Johnson, 51 S. W. 531, the railway company emitted sparks on its road, and set fire to the clothes of a child. It was held that the negligence of the company in emitting the sparks was the proximate cause of the child’s resulting injuries. Many other cases might well be cited, but those given, we think, will illustrate the views already expressed.

We should, perhaps, add that we have not discussed any supposed defense of assumed risk or of contributory negligence on the part of H. C. Bennett, for the reason that, under title 115, c. 14, of the Revised Statutes of 1911, contributory negligence is in no event an absolute bar to recovery, and an assumed risk is not a defense in cases where a person of ordinary care would have continued in the service with a knowledge of the defect and dangers. These are issues, therefore, that may or may not be important upon a trial, but have not been deemed to be so, under the evidence before us, for the purpose of the present decision.

We conclude that the court erred in taking the case from the jury and giving the peremptory charge he did. It is accordingly ordered that the judgment be reversed, and the cause remanded for a new trial.


text:
    HEAD v. ALTMAN.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 25, 1913.
    Rehearing Denied March 8, 1913.)
    1. Appeal and Error (§ 301) — Motion por New Trial — Filing—Court Rules — Application.
    District Court Rule 71a (145 S. W. vii), providing that a motion for a new trial shall be filed in all cases where the parties desire to appeal from a judgment of the trial court or sue out a writ of error, unless the error complained of is fundamental, except in such cases as the statute does not require a motion for a new trial, applies to trials before a court without a jury, as well as to trials to a jury, and precludes a consideration on appeal of an assignment of error not set forth in the motion for a new- trial, unless the error arose after it was too late to file the motion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 301.]
    2. New Trial (§ 119) — Filing—Time—Consideration.
    While Rev. Civ. St. 1911, art. 2023, requires that motions for a new trial shall he filed within two days after the rendition of the judgment if the term continues so long, it does not preclude the trial court from entertaining a motion filed after the time specified, especially where the ruling complained of has arisen after it is too late to file the motion within the statutory time.
    [Ed. Note. — For other eases, see New Trial, Cent. Dig. § 243; Dec. Dig. § 119.]
    3. Appeal and Error (§ 301) — Motion por New Triai^-Review.
    Rev. Civ. St. 1911, art. 2023, requires motions for a new trial to be filed within two days after the rendition of the judgment if the term shah continue so long, and district Court Rule 71a (145 S. W. vii) declares that a motion for a new trial shall be filed in all cases where an appeal or writ of error is desired, unless the error is fundamental. Held, that such rule contemplated that an opportunity should be first given the trial court, if possible, for the correction of errors of procedure, because of which it was insisted that the judgment should be reversed on appeal, and, the court having filed its conclusions of fact and law in term time, and at a period when alleged error therein could have been presented to it for its consideration by a motion for a new trial, appellant was bound to do so, in order to obtain a review of the objections on appeal.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 301.]
    Appeal from Jones County Court; Joe C. Randel, Judge.
    Action by E. V. Altman against T. J. Head. Judgment for plaintiff, and defendant appeals.
    Affirmed.

      Clint. Chambers, of Anson, and Theodore Mack, of Ft. Worth, for appellant. Brooks & Brooks, of Anson, for appellee.

      3?or other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   CONNER, C. J.

On appeal from a justice’s court appeliee recovered a judgment in the county court of Jones county against the appellant, T. J. Head, for the sum of $136 as commissions for the sale of a tract of land owned by appellant. The trial in the county court was before the court without a jury, on the 2d day of March, 1912. On the 21st day of March, 1912, the court, pursuant to a request, filed his conclusions of fact and law. No motion for a new trial was filed, and the court adjourned for the term on the 30th day of the same month. An appeal has been prosecuted, appellant assigning errors which charge conflicts in the court’s finding of fact, an insufficiency of the evidence to sustain certain findings, and an entire absence of evidence to sustain the judgment, also urging objections to a number of the court’s conclusions of law.

We are met at the threshold of the case with a motion on appellee’s part to strike out all of appellant’s assignments of error. The contention, is that under the operation of rule 71a for the district courts (145 S. W. vii) and rules 24 and 25 for the Courts of Civil Appeals (142 S. W. xii), that complaint cannot be made on appeal of proceedings upon the trial, unless the matters complained of have been presented to the trial court in a motion for a new trial. Rule 23 (142 S. W. xii) provides that the record on appeal must contain assignments of error, as required by the statutes in the absence of which the appellate court will not consider any error but one of law that may be apparent upon the record, if the judgment is one that could legally have been rendered in the lower court and affirmed in the appellate court.

Rule 24 reads: “The assignment of error must distinctly specify the grounds of error relied on and distinctly set forth in the mo-ion for a new trial in the cause, and a ground of error not distinctly set forth in a motion for a new trial in the cause and not distinctly specified in reference to that which is shown in the record, or not specified at all, shall be considered as waived, unless it be so fundamental that the court would act upon it without an assignment of error as mentioned in rule 23.”

Rule 71a provides that: “A motion for a new trial shall be filed in'all cases where parties desire to appeal from a judgment of the trial court, or sue out a writ of error in the cause, unless the error complained of is fundamental, except in such cases as the statute does not require a motion for a new trial.” Rule 71a is an amendment that took effect in January, 1912, and has been construed by the Amarillo and El Paso courts as having been intended to apply to trials before the court without a jury, as well as to trials before a jury, and as precluding a consideration on appeal of any assignment of error unless the error has been distinctly set forth in a motion for new trial in the court below. See Davidson v. Patton, 149 S. W. 757; Nunn v. Veal, 149 S. W. 758; Murphy v. Earl, 150 S. W. 486. We do not think it necessary to add to what has been said in the decisions referred to, but we agree with the construction of the rules as therein given, save that we are of opinion that a distinction must be made where just complaint arises after it is too late to file a motion for a new trial. Eor instance, under the law as it now exists motions for new trials must be filed during the term, and the trial judge is given 10 days after the adjournment of the term within which to file his conclusions of fact and law, when requested by one of the parties. See Revised Statutes 1911, art. 2075. So that, if in a given case, in compliance with this statute, the court’s conclusions of fact and law should be filed after the adjournment of the term, and legal cause of complaint thereof should be found to exist, it would be unreasonable to presume that amended rule 71a was intended to apply thereto. In the construction of court rules, as well as of law, it will not be assumed that the legislative power intended the performance of legal impossibilities, and we would therefore have no hesitation in considering the assignments of error in this case which complain of the court’s conclusions of fact and law, did it not appear that they were filed within term time, and at a period when the trial court might have acted thereon.

It may be said that the statute requires motions for a new trial in the court below to be filed within two days after the rendition of the judgment, if the term of court shall continue so long, and inasmuch as the court’s conclusions of fact and law in the present case were filed more than two days after the rendition of the judgment, that the assignments of error are not objectionable under the very rule of construction that we have suggested is the proper one. But while the statute is as indicated (Revised Statutes 1911, art 2023), it has been often determined that the trial court may nevertheless entertain a motion filed thereafter (Linn v. Le Compte, 47 Tex. 440; Bryorly v. Clark, 48 Tex. 345), and we think the spirit of rule 71a contemplates that an opportunity shall first be given to the trial court, if it can be done, for a correction of errors of procedure because of which on appeal it is insisted that'the judgment should be reversed. Such has long been the rule where complaint is made, as in some of the assignments of error in this case, of the insufficiency of the evidence to sustain the verdict. See Railway v. Douglas, 7 Tex. Civ. App. 554, 27 S. W. 793; Wetz v. Wetz, 27 Tex. Civ. App. 597, 66 S. W. 870; City of Austin v. Forbis, 99 Tex. 234, 89 S. W. 405; Railway v. Douglass, 87 Tex. 297, 28 S. W. 271.

We conclude that appellee’s motion to strike out appellant’s assignments of error must be sustained, and, no fundamental error appearing, the judgment is affirmed.


author: SPEER, J.

text:
    FIDELITY PHENIX FIRE INS. CO. v. SADAU.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 25, 1913.)
    1. Insurance (§ 665) — Action on Policy-Evidence.
    In an action on a fire insurance policy, where the policy was not offered in evidence, and there was no proof of its contents, a judgment for plaintiff could not be sustained.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. § 665.]
    2. Pleading (§ 376) — Matters to be Proved — Admissions.
    As a defendant may plead as many inconsistent defenses as he may desire, where, in an action on a fire insurance policy, defendant pleaded the general denial, a special plea setting out the terms of the policy did not relieve plaintiff of the burden of proving the contents of the policy.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1225-1227; Dec. Dig. § 376.]
    3. Pleading (§ 115) — Answer—General Denial.
    A general denial puts in issue all the allegations of plaintiff’s pleadings.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 240; Dec. Dig. § 115.]
    Error to Clay County Court; W. T. Allen, Judge.
    Action by Frank Sadau against the Fidelity Phenix Fire Insurance Company. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    Wm. C. Thompson, of Dallas, for plaintiff in error. Leslie Humphrey, of Henrietta, for defendant in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPEER, J.

Frank Sadau filed this suit in the county court of Clay county to recover from the defendant, the Fidelity Phenix Fire Insurance Company, for the loss of certain household goods destroyed by fire, alleged to be covered by the defendant’s policy, in the sum of |500. There was a jury trial resulting in a verdict and judgment for the plaintiff, and the defendant prosecutes this writ of error.

There are a number of assignments, but we need only discuss one, which presents an error' going to the foundation of the action. A careful examination of the statement of facts discloses that the policy upon which the suit was based was never introduced in evidence, nor was there other proof to show its contents, without which, of course, the judgment cannot stand.

Defendant in error attempts to answer this assignment by saying that the terms of the policy were pleaded by plaintiff in error. This is true in part, at least, but our statutes permit a defendant to plead as many inconsistent defenses as he may desire, and it has never been held that a special answer embracing matters pleaded by the plaintiff admitted same to be true where the defendant had also pleaded the general denial. This general denial puts in issue all the allegations of the plaintiff’s pleadings. See Bauman v. Chambers, 91 Tex. 108, 41 S. W. 471. In the present case there was a general denial, and the special plea, invoking certain parts of the policy in defense, cannot have the effect of relieving defendant in error of the burden of proving his case.

Most of the other assignments, presenting, as they do, alleged errors for refusing to give certain charges based on certain paragraphs of the policy, amount to nothing, since there was no evidence calling for them, in the absence of the policy itself.

For the error pointed out, the judgment of the county court is reversed, and the cause remanded for another trial.


author: RAINEY, C. J.

text:
    SHERMAN OIL MILL v. NEFF.
    (Court of Civil Appeals of Texas. Dallas.
    April 12, 1913.
    On Motion for Rehearing, May 10, 1913.
    On Motion for Rehearing and Additional Findings of Fact, June 7, 1913.)
    1. Master and Servant (§ 265*) — Action tor Injuries — Burden oe Proof.
    To fix the liability of a master for injuries to a servant, his negligence must not only be shown, but must be shown by affirmative evidence to have been the proximate cause of the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.*]
    2. Master and Servant (§§ 101, 102*) — Master’s Liability — Safe Place to Work.
    It is the duty of the master to use ordinary care to provide his servant with a safe place in which to work and to provide safe appliances with which to perform his work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.*]
    3. Master and Servant (§ 264*) — Action for Injuries — Pleading and Issues.
    Allegations, in a servant’s action for injuries, that the belt operating gin stands in a cotton gin, through or behind which plaintiff reached, was old, defective, and unsafe, was negligently fastened together, and that it was laced crooked and was too loose, raised the issue of negligence in allowing the belt to be laced crooked, which caused it to jump.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. § 264.*]
    4. Appeal and Error (§ 1033*) — Harmless Error — Instructions.
    Where the charge was favorable to defendant, although it submitted several undisputed issues, it was without injury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052 — 4062; Dec. Dig. § 1033.*]

      On Motion for Rehearing.
    •5. Master and Servant (§ 217) — Action for Injuries — Assumption oe Risk — Machinery.
    Plaintiff, -who was employed in and about a cotton gin, was familiar with the situation of the gin stands to each other, knew that a 'belt was laced crooked causing it to jump while passing over the pulley, and that to reach and oil the journal he would have to put his hand between the belt, and who had done some of the lacing himself and knew that the belt was ■laced crooked and that it jumped on the pulley, and had charge of small and temporary repairs, had his arm injured while reaching it between the belt to oil. Held, that he had assumed the risk and could not recover.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.] •
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by John Neff against the Sherman Oil Mill. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    J. F. Holt and Head, Smith, Hare & Head, all of Sherman, for appellant. E. J. Smith, •of Denison, and Freeman & Batsell, of Sherman, for appellee.

      Por other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RAINEY, C. J.

Appellee instituted this •suit against the appellant to recover damages for personal injuries received by him while engaged in working in and about a cotton gin as an employe of appellant, while it was being operated in Sherman, Tex. In ■substance he alleged that he was working around certain gin stands engaged in oiling them, and in the performance of his duties it became necessary for him to place his right hand between and near a certain moving belt that operated the gin stands, and that while so doing the sleeve of the jumper he was wearing was caught by said belt, and his arm drawn in between said belt and the pulley on which it worked, and that his arm was so injured that it was necessary to amputate the same. Among a number of grounds of negligence alleged was the following, which was submitted by the court to the jury: “(3) The said belt, through or behind which plaintiff reached, was old, rotten, defective, dangerous, and unsafe for the purpose for which same was being used; was negligently, carelessly, and improperly fastened together; that it was laced together, laced crooked, and was permitted to be and remain too loose.” That the condition of said belt was known to appellant and was unknown to appellee. Appellant answered by general denial, pleaded assumed risk and contributory negligence, and especially that at the time and place of injury appellee was the representative of appellant in the immediate charge of said gin stands and machinery, and appliances in connection therewith, and was familiar with the same, and it was his duty as such representative, or foreman in charge thereof, to take notice of the condition of said machinery and appliances, and if the same became defective, or out of repair, it was his duty to repair the same, or in case the repairs were of such nature that he, as such foreman, could not make, it was his duty to report the same to appellant. The cause was tried and resulted in a verdict and judgment in favor of ap-pellee and against appellant for $7,500, from which this appeal is taken.

Appellant complains in its first assignment of error as follows: “The court erred in refusing to give to the jury defendant’s requested instruction reading as follows: ‘In this case you are instructed to return your yerdict for the defendant.’ ” The proposition submitted under this assignment is: “Negligence must be shown by affirmative proof, and, to fix the liability of an employer for injuries sustained by an employe, his negligence must not only be shown, but such negligence must be proved by affirmative evidence to have been the proximate cause of the injury, and the evidence fails to disclose such negligence in this case.”

The evidence shows that Neff was working with, and had charge of, the gin stands of appellant and was engaged in oiling them. On the west end of the gin stand on which he was injured there was, about three feet from the floor near the front of the gin stand, a pulley known as the saw pulley; it was about 14 to 18 inches in diameter, and the flat surface of the pulley was about 8 inches wide; that an axle about the same elevation as that of the saw pulley immediately back of it, and 4 or 5 inches from the outer edge of the saw pulley, was a smaller pulley known as the brush pulley. Still back of the brush pulley, and higher up, was an idler, which could be moved back and forth by means of a lever, and the machinery started or stopped, and the belt that operated the same tightened or loosened. The belt passed up through the floor, back of and over the top of the brush pulley, then under and around the saw pulley, then back and over the idler, and back through the floor. The gin was in operation and the belt was moving rapidly. The belt with which this gin stand was operated was laced together, and the ends were not laced straight, and the ends were a little ways apart, being held together by lacing something like lacing on a shoe. Appellee put his hand between the belts, over the brush pulley, for the purpose of oiling a bearing on the back side of the brush pulley, next to the gin stand, when the sleeve of his jumper was caught by the belt, or something, and his arm carried into the saw pulley, where it was injured. There were four gin stands placed side by side about five or six inches apart — so near together that Neff could not go between them while oiling — and in oiling he had to look •over the belt to see bow to put tbe oil in the receptacle, and could not watch his arm •while between the belts. The ' gin stands ■were new, haying been installed at the beginning of that season, and had been in operation about one month, although they had not 'been run regularly and all together the time •consumed in running would amount to about one day. Mullenix was foreman and in •charge of the gin stands, and instructed Neff that oiling was necessary about every hour. Hard oil could have been used, which would have required replenishing every half-day. Neff had told Mullenix, if he would get 1% feet of leather, he (Neff) would dress it down and glue it, and he said, “Go ahead and lace it until it stretches, and then we could fix it some Sunday.” For the four gin stands one belt was used for the operation of each; two were laced and two were glued. It was common to use laced belts, but it was preferable to use glued ones.

Neff testified, in part:

■ “I reached in between the belts and oiled this inside journal because that was the only way to get to it. I could not see where my hand and arm was, at the time I put my arm through to do this oiling. The belt was In my way, top belt. If I had only had one ■stand there instead of four, I could have -seen, by stooping down. I could not see in this instance with the four stands there, because I could not get around to the end where I could look in there. I have never worked ■at a gin stand where I had to reach in between the belts and oil inside journal until I went to oiling these particular gin stands. There was a little crack down about one-half inch between the belt and the top part that ■sets right over the brush where I could see the inside journal that I was attempting to ■oil to see if the oil was going inside the journal. I would stand back behind the saw pulley, put my arm over the little pulley, my oil cup in my right hand, and then bend •over the top of the saw pulley and look down ■through a little crack on the far side of the pulley belt and see where the oil was striking —put my right hand down like that — and peep over. There was no other way by which this oil cup could have been filled without going between the belt as it was constructed, at that time. There was a way that it could have been constructed so that I could have ■oiled it without going between the belt. You ■could have sawed that part off a little there right behind the gin stand; that is, the part that sets over the brush. I would have sawed off about four inches of that board, then you could have put a hinge on the board, and when I wanted to oil the inside journal, pull that piece of board back and reach over the belt. It would not have been necessary to go between the belts at all. Then the board when I finished oiling would go right back in place. It would have cost about 40 or. 50 cents, I think, to do that. I was reaching through there to oil this cup, and that belt caught my jumper sleeve and jerked it around into this saw pulley into the belt. I was reaching over this little pulley, which is about four or five inches from the big pulley, and my hand and arm was thrown under the saw pulley, and then it just tore it off, is all I know — ground my arm. off. When my hand and arm was caught there between the belt and the saw pulley, it jerked me down against the frame of the stand. When it caught me, it just jerked me down against the frame of the stand and then wound my arm around that pulley until it tore the jumper off and then turned me loose — it turned me loose after it tore my jumper off; besides tearing my jumper, it tore my arm off; it just bursted it, tore all the bones out of it. I went to work for the defendant in 1909 at its gin stand and worked that season of 1909-10 attending the suction; just run the suction from the wagon that had the cotton in it. I guess I did that work about a month or such a matter, and then I went to tying out bales; that is, just putting hoops and ties around bales and tying them and rolling them dowd stairs. I stayed there at that work the rest of the season — the 1909-10 season. The season generally lasts about four months.

‘‘When I went back to work in 1910,1 started to running the gin stand, and continued in that work up to the time I was hurt. My recollection is that was in 1910. I started to work about the 1st of August — best of my recollection. I quit the season about the middle of January, then I went back to the same job in 1911, went back to work about the middle of August. We started operating that season about August 15th. I was hurt the 25th of August, 1911. When I started to work, Mr. Mullenix was working there too. I was working under him that season. I had charge of all four of the gin stands; they were placed side by side; they were lined up east and west. I was hurt on the west end of the east stand. I had no assistant and didn’t have any during the season of 1910. The gin stands were new. They had been installed at the beginning of the season of 1911. The difference between "the old stands and the new is that the new stand is longer than the old one, and that cut down the space in between the stands some. The space between the old stands was between a foot and a foot and a half. Between the new stands, to the best of my judgment, it was about six inches in the clear between those bearings. Each gin stand had a separate line shaft and had a separate belt coming up from below. 1 had never operated a gin stand where it was necessary to reach through the belt before. Those gin stands had only been operated a sufficient length of time to gin about 18 or 30 bales of cotton. That was all the experience that I had then in oiling the inside journal by reaching between the belts. Those four gin stands could gin between 20 and 30 bales in a day, steady running. Those gin stands had not been operated all together more than one wort day. Just before I was hurt, just like I was oiling this particular journal, I was oiling the rest of the stands. I had oiled the others. The other three stands to the west I had already oiled. I was oiling this one in the same way that I had oiled the other three. I was oiling this inside journal in the ordinary way — only way I seen to oil it. That belt went around in its circuit 200 times a minute, I espect; something like that. That lacing passed over this journal every time the belt went around it. * * * When the lacing at the union of the belt passes over the pulley, the thickness of the lacing is between the belt and the pulley at least to the width of the thickness of the lacing. When it is going so fast that way, and the lace hitting the belt has somewhat the appearance of a jump, that is what I speak of as a jump. * * * I think that my sleeve might have gotten under the belt and over the pulley at that jump. I don’t know what other way my sleeve might have gotten under the belt and pulley except for the jump. I didn’t know at the time of my accident that belts that are laced jump some. I know now that all belts that are laced will jump as they go over the pulley. I know now what causes the belt to jump. The lacing causes it. It is the thickness of the lacing under the smooth surface of the belt. When the lacing in the belt comes to the smooth surface of the pulley, that causes it to jump.”

Appellee further testified on cross-examination that he was running the four gin stands under the superintendency of Mullenix, and if anything went wrong that he saw he was to report it or fix it himself.. So far as he knew, there was nothing the matter with the belt. After a belt has been used awhile, where laced, it will widen some and be more liable for the corner to catch and cause trouble. The belt was pulling the gin all right, and there seemed to be no necessity for fixing it at once.

Conclusions of Law.

Counsel for appellant states a correct principle of law when they say that “negligence must be shown by affirmative proof, and to fix the liability of an employer for injuries sustained by an employé his negligence must not only be shown, but such negligence must be proved by affirmative evidence to have been the proximate cause of the injury.” Does the evidence in this case meet the requirements stated? We are inclined to think so.

It is the duty of the master to use ordinary care to provide his servant with a safe place in which to work and to provide safe appliances and instrumentalities with which to perform his labors, and the servant can rely on the assumption that this has been done by the master. If this duty of master has not been performed, and the servant knows of it, and the risk attending it, or in the ordinary performance of his duties must necessarily have acquired such knowledge, he assumes the risk and cannot recover. Here the master knew that he was running his belt laced crooked, which would cause it to wabble, he knew that the receptacles for receiving the oil were so placed that the servant would have to place his hand between the belt to oil the machinery, and that said receptacles were not fixed so they could be replenished with oil without the belt obstructing the sight of the servant in doing this work so he could not observe his arm when placed between the belt, and in placing the gin stands so near together as to prevent the servant from safely doing the oiling. Under these conditions, can it be said that the evidence does not show negligence of the master that proximately caused the injury to appellee?

The jury have said it was negligence in the master, and we do not feel authorized to say the evidence does not warrant such a finding. As was said by Justice Fly in Railway Co. v. Udalle, 91 S. W. 330: “Whether the master is negligent or not in furnishing a certain appliance, and whether or not knowledge of its defects had been brought home to the servant, are questions which generally must be submitted to a jury for their determination, and when there is evidence to justify a finding of the jury the appellate court must be bound by that finding on the facts. Every case must necessarily be decided on its peculiar facts. The character of the appliance, the circumstances surrounding the servant during its use, the length of time of its use — all must have their force and effect in determining the knowledge of a defect upon the part of the servant. The jury has the authority in the first instance to pass upon the evidence, and, as before stated, their verdict will not be disturbed if the circumstances taken together justify their conclusion; and it will thus arise that decisions of courts, in cases where the facts are similar, seem to be in conflict. The appellate court, in the absence of error of law, must justify the finding of the jury if the evidence will admit it; and it is undoubtedly the case that verdicts are often approved because of the foregoing rule, and not because the court has the same view of the facts as that evidenced by the verdict. Keeping the rule in view, it is easy to understand some of the seeming incongruities of opinion on fact cases.”

The second assignment of error is: “The court erred in refusing to give special charge No. 1, requested by defendant, because the undisputed evidence shows that plaintiff was a man of mature years, and was experienced in the work in which he was engaged at the time of his injury; that he had, or in the ordinary circumspection of his work must nee-sssarily have had, full knowledge of all the defects and dangers which, in any manner, caused or contributed to cause his injury; and he therefore assumed the risk thereof, and could not recover.” The following proposition is submitted under this assignment: “Neff was of mature years; was experienced in operating gins; had assumed the duty of looking after and keeping in repair the gin machinery where he was hurt; knew that the belt near which he was working was laced and laced crooked; knew the effect of the movements of the belt being laced in the manner it was; its condition, movement, and the dangers arising therefrom were more apparent to him than any one else; and he assumed the risk of danger therefrom.” Appellee did not assume the risk, because he was in charge of the gins, and he was to report anything he saw wrong. He had not worked at gins before this where he had to put his hand between the belt and where he lost sight of his arm while performing the work of pouring the oil. While he knew of the way the belt was laced, he did not know of the danger attending the work as shown by the evidence. He was under no obligation to inspect, nor were the defects so obvious and patent as that he must of necessity have known thereof in discharging his duties, nor was he warned by the master of the danger in the work. Railway Co. v. Patrick, 50 Tex. Civ. App. 491, 109 S. W. 1097; Schow v. McCloskey, 109 S. W. 386. If a servant knows of one defect, he does not take the risk of another of which he has no knowledge, and if both contribute to injure him he is entitled to recover; provided, but for the unknown defect, the accident would not have happened. Railway Co. v. Somers, 78 Tex. 439, 14 S. W. 779.

The appellee was ordered by the foreman to oil the gin, and it was necessary for this to be done that he should run his arm between the belt, and he had the right to assume that he would not be exposed to unnecessary peril, and that there was no danger. Marshall v. Railway Co., 107 S. W. 884; Machine Co. v. Bennett, 141 S. W. 156. There was no error in refusing the charge.

The third, fourth, and fifth assignments show no reversible error, and the same are overruled.

The sixth assignment of error complains of the sixth paragraph of the court’s charge, which relates to negligence, if any, of defendant in allowing the belt to be laced crooked, which caused it to jump, etc.; the objection being in substance that the pleadings do not raise such an issue, that there is no evidence to support it, and that it is on the weight of the evidence. None of these objections is well taken. The pleadings of plaintiff charged a defective belt, and the jury, under the evidence, were warranted in finding that it was defective. The charge is not subject to the criticism of being on the weight of the evidence.

The seventh assignment of error complains of the refusal of the court to give a special charge, which in effect tells the jury that the crooked lacing of the belt was not the proximate cause of the accident, and to find for defendant. This charge was upon the weight of the evidence and should not have been given, as the manner of lacing the belt was a controverted issue as to being the proximate cause of the injury, and was under the evidence a question for the jury.

The eighth assignment complains of the seventh paragraph of the court’s charge, in that so many undisputed issues are submitted, that the real issues are obscured and had the effect to burden rather than enlighten the jury. While some of the issues were undisputed, the charge was favorable to appellant No special injury to appellant is pointed out, and no harm, at most, resulted to appellant.

Several other assignments are presented by appellant. We have duly considered them all, but have found no reversible error.

The judgment is affirmed.

On Motion for Rehearing.

On a former day of this term of court we affirmed the judgment in this cause on the theory that the facts showed a combination of circumstances that the jury were authorized to find that appellant was guilty of negligence in operating its gin stands, and that appellee was not aware of the danger, and therefore did not assume the risk in managing the said operations. Upon reconsideration of the evidence, and especially that of the appellee himself, we have reached the conclusion that we erred in affirming the ease on the former hearing. The testimony of appellee showed that he was perfectly familiar with the situation of the gin stands with relation to each other; he knew that the belt was laced crooked, that it worked in and out, and that the lacing caused it to jump when passing over the pulley, he knew how the receptacle for the oil was placed, and that he would have to reach his hand between the belt to fill the cup with oil. While he was under a foreman, he had charge of the operations of the gin. He testified that; ‘T had done some of that lacing myself. I have done pretty near all the belt lacing last year and this. It (the belt) was laced in the usual way. The belt was laced crooked. I mean by that I noticed the belt wasn’t going straight. The two ends were not cut straight. One was cut at a slant I noticed that right after it started up. I noticed it as it jumped in and out on the pulley where the lace would catch it. The belt would not work off the pulley, but just work out, and when it would hit it would come back again. It just worked in and out Just after we started up, I noticed it, and it kept up until the time of the accident. I have care of the stands too while we were not running; when we would have no cotton to gin and shut down the machinery temporarily, I would generally fix one thing and another. I would look around the machinery generally, sort of like an engineer would his engine, and see that everything was in order; see that nothing was getting out of fix or getting loose that needed tightening up. If I found anything out of order, little things around there, I would fix it.”

In our first opinion we said: “While he knew of the way the belt was laced, he did not know of the danger attending the work, as shown by the evidence.” Also: “If a servant knows of one defect, he does not take the risk of another of which he has no knowledge, and if both contribute to injure him he is entitled to recover, provided, but for the unknown defect, the accident would not have happened.”

Appellee was an experienced person, 28 years of age, and from his testimony we must conclude that all the defects of which he insisted contributed to his injury were known to him, and it is inconceivable that he did not know of the danger of placing his hand between the belt when the gin was running. It was unnecessary for him to take any such risk when he could have the engineer to stop the gins, or he could have stopped either gin separately by dropping the idler. He could have stopped the gin which he was oiling, thereby taking no risk of injury from the laced belt.

When the evidence about which there is no serious conflict is considered, we are of the opinion that it fails to show any liability on the part of the appellant, that the motion for rehearing should be granted, and the judgment he reversed, and, as the case seems to be fully developed, judgment should be rendered for appellant, and it is so ordered.

On Motion for Rehearing and Additional Findings of Fact.

We are asked by appellee to find as a fact that he did not know the danger attending the putting of his hand between the belt while the gin. was in operation. It is true that he testified he did not know the danger; but we are of the opinion, when all of his testimony is duly considered, that it shows he was perfectly familiar with the operation of the gins, acquired by long experience in their- operation, and the danger of putting his hand between the belt was so apparent that he must of necessity have known of the danger, and is therefore chargeable with knowledge thereof.

The motions are overruled.