Opinion
No. 4195.
May 12, 1932.
Error from District Court, Bowie County; Geo. W. Johnson, Judge.
Suit by John Steele, by next friend, against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant brings error.
Affirmed.
This was a suit for damages for injury to his person brought by defendant in error, by J. H. Jackson, as his next friend, against plaintiff in error, which resulted in a judgment in defendant in error's favor for $500. In its answer to the suit plaintiff in error alleged that at the time of the accident it "was a common carrier engaged in interstate commerce and that plaintiff at said time was engaged in work which was in furtherance of interstate commerce," and then charged that the risk appellee incurred in doing the work he was engaged in when injured "was a danger ordinarily and usually incident to his employment at the time, and the risk thereof was" one he assumed. It appeared in the testimony that in May, 1929, defendant in error, then a boy between seventeen and eighteen years of age, employed by plaintiff in error as a section hand, was assisting other employees in work described as "skeletonizing the track." In doing the work the practice was, with jacks, to hold up rails with ties attached to them, while defendant in error and other employees shoveled dirt under such ties and other ties not attached to the rails. On the occasion of the accident, a jack holding a rail was released without warning at a time when defendant in error's right foot was resting on a loose tie under the rail. Releasing the jack caused the rail to fall on defendant in error's said foot, severely injuring same. Among others, the court submitted special issues, and the jury made findings as follows: "1. Do you find that the plaintiff's right foot was injured on or about May 16, 1929, while working for the defendant, by releasing or tripping of a jack, lowering the rail onto the tie on which plaintiff's foot was placed at the time?" Answer: "Yes." "2. Do you find that defendant was negligent in tripping the jack while plaintiff's foot was on the tie under the rail?" Answer: "Yes." "3. Was such negligence, if any, a proximate cause of said injury, if any?" Answer: "Yes." "4. Do you find that defendant failed to warn plaintiff of the intention at the time to trip the jack which caused the injury?" Answer: "Yes." "5. Do you find that such failure, if any, to so warn the plaintiff was negligence on the part of the defendant?" Answer: "Yes." "6. Do you find that such negligence, if any, was a proximate cause of the injury?" Answer: "Yes." "15. Was the risk, if any, of the plaintiff getting his foot caught between the rail and the tie, upon the jack being tripped, one of the risks ordinarily incident to the work in which the plaintiff was engaged?" Answer: "Yes."
Ramey, Calhoun Marsh, of Longview, and N. L. Dalby, of Texarkana, for plaintiff in error.
Wm. V. Brown, of Texarkana, and Danaher Danaher, of Pine Bluff, Ark., for defendant in error.
Plaintiff in error insists that the effect of the findings of the jury in answer to the questions numbered 1, 2, 3, 4, 5, and 6, set out in the statement above, was to determine it was guilty of actionable negligence, whereas the effect of the finding in answer to the question numbered 15, set out in said statement, was to determine "there (quoting) was no negligence on the part of appellant, (plaintiff in error) its agents and servants, but that appellee (defendant in error) was injured by one of the risks and dangers ordinarily incident to the employment." On the theory that the findings specified therefore were in conflict and destroyed each other, plaintiff in error insists, further, that same could not be treated as a sufficient basis for the judgment rendered against it.
We think an issue as to assumed risk was not raised by the evidence, that such an issue therefore should not have been submitted to the jury, and that the trial court in rendering judgment should, as evidently he did, have ignored, because immaterial, the finding of the jury in response to said question numbered 15 propounded to them. If it should be conceded it appeared plaintiff in error at the time of the accident was a common carrier by railroad engaged in interstate commerce, and that defendant in error was employed by it in such commerce, and therefore that the rights of the parties were determinable with reference to the federal statute (sections 51 and 54, title 45, U.S. Code, Annotated; and see 29 C.J. 689) entitling such a carrier, in a proper case, to invoke the doctrine of assumed risk, we think the conclusion that the testimony did not make such an issue is nevertheless correct. As we construe the evidence, there is no suggestion in any of it that the injury to defendant in error was due to anything else than negligence for which plaintiff in error was responsible. It is the law that negligence of an employer is not one of the risks incident to an employee's undertaking, and that the latter, when ignorant of the existence of such negligence, as defendant in error was in the instant case, does not assume the risk of injury incurred in doing the work. 39 C.J. 684, 896, and authorities there cited.
The judgment is affirmed.