TEXAS & P. RY. CO. v. MINNICK et al., 57 F. 362

LOCKE, District Judge, (after stating the facts as above.) The only assigned errors which we are called upon to consider are those alleged to have been committed in a refusal to give the charges requested. The charge given by the court was very full, covering very largely all questions which might arise in the case; hut it is claimed by plaintiff in error that, upon tbe points upon which instructions were asked, the law was not stated to the jury, or, if at all, not so fully and clearly as the circumstances and evidence of the case would demand.

Considering each requested instruction in the order asked, we find the first asking that, the jury be instructed that there was no evidence that the engine that is claimed to have set fire to the bridge was out of repair, but it is claimed that the kind of engine used was defective in original construction, and they be instructed as follows: “Tlio" railway company liad the right to adopt proposed improvements in engines, by which the escape of fire is lessened, if in doing so they use the; care that an ordinarily prudent man would exercise under similar circumstances.” A careful examination of the testimony shows that the question is properly stated in such instruction.

The contest through the entire case was not the bad condition of the engine which is claimed to have set fire to the bridge, but the mode of construction, and the attempted disposition of the sparks and cinders from the engines in those provided with the so-called Brown stack, and we fail to find any evidence showing that that particular engine was out of repair, but it was one with a Brown stack, and many of the engines had been furnished with such for the purpose of arresting sparks, and preventing their escape from the stack, and forcing them into the ashpan.

But would this instruction add anything, in behalf of plaintiff in error, to what had already been given?

The court had already instructed the jury as follows: “If the jury believe from tiie evidence tliat tiie engine of defendant company, which, it is claimed sot fire to the bridge, ivas reasonably safe for the purpose for which it was being used by defendant, although not of the best or newest or safest, then the jury will find for the defendant.” And also charged the jury: ■ “Or if the jury believe from tiie evidence tliat the engine used by defendant, which it is claimed set fire to the bridge, was not unsafe or dangerous, although not as safe as other engines, then the jury will find for the defendant.” This instruction was, if they found the engine “reasonably safe for the purpose, though not of the best or newest,” or “not unsafe or dangerous, though not as safe as other engines,” they should find for the defendant.

It cannot be urged that substituting, in the measure of the condition of the engine, “one not unsafe or dangerous,” for “one that an ordinarily prudent man would use,” would permit the employment of one of inferior condition. In finding a verdict under the instructions given, they had to pass upon the question of the condition of the engine, — whether or not it was reasonably safe for the purpose; and under the instructions asked they would only have had presented the question whether, in using it, the company would be using the care an ordinarily prudent man would exercise.

We consider the charge, as given, covered that point of law, and was fully as favorable to plaintiff in error as was that asked. It was not,a contested point whether or not the engine under inquiry was or was not out of repair, any more than in the manner of its construction, and the judge was not bound to instruct the jury that there was no evidence upon that point.

It is true the whole condition of the engine on account of its construction was only in question, but we do not consider that an ordinarily prudent man would be justified in using au engine not reasonably safe in its construction, although it might be a proposed improvement. This conclusion would apply with equal force to the second instruction asked, as we do not consider that a railway company would be justified iu using an engine “not -reasonably safe,” but “unsafe and dangerous,” for the length of time it appears the Brown stack had been used, although it might be testing proposed improvemen s.

We therefore consider there was no error in refusing the first and second requested instructions, as the subject-matter had already been included in the general charge. But, wh<m we examine the third instruction asked, we fail to find anything in the general charge that would cover the point there requested.

Plaintiff below had alleged in her petition that defendant company had been operating defective and dangerous engines over and upon its line of road, by which the bridge was set on fire and burned, and that the defective and dangerous condition of the engine was known to defendant company, or could have been known by the use of ordinary care and diligence, and this knowledge, or the fact that it should have had su'-h, becomes a question of law, which certainly might have weight in determining the case; and inasmuch as it does not appear, as affirmatively proven, that any one who represented the company was informed of such defect, the question whether a person of ordinary care would or would not have foreseen, or would or would not have reasonably expected, such a disaster from the use of the engine complained of as did result, should certainly have been submitted to the jury.

But, while the knowledge or presumed knowledge or reasonable expectation might be inquired into, the language of the request would seem to confine the question to- a limit altogether too narrow in its application. A person of ordinary care might foresee a disaster, and anticipate it, — might, on account of defective machinery or appliances, be constantly fearing and expecting it, — and ,yet not foresee or reasonably expect the particular individual who would be involved in it.

As requested, the charge would prevent a verdict for plaintiff unless they found from the evidence that the use of the Brown smokestack would give a person of ordinary care a reasonable expectation that Minnick, of all the hundreds of employes engaged on the road would be the one injured. As asked, we find no error in refusing the instruction, but, if modified as wé find it quoted in the brief of the plaintiff in error, making the foreseen or reasonably expected injury to some employe of the road, we consider it should be given. The fourth assiemnent of error is not insisted upon.

The fifth assignment relates to the risks assumed by Minnick in his accepting employment from defendant company, and we fail to find in tfie given charge any instructions upon that point. It was stated by the judge to be a plea in defense of the suit, that Minnick knew' of the dangers attending Ms employment, and assumed and took the risk of such accidents as caused Ms death; but the record does not disclose that any charge wras given upon that point, although it was a question of law. The instructions asked have to be examined in the light of the evidence of the case.

The only contest in this case has been that the peculiarity in the construction of the engine with the Brown stack was what set fire to the bridge. It appears that Minnick was well acquainted with such peculiarity, as he was himself driving one. We think it a well-establisbed principle of law- that an employe assumes the risks ordinarily incidental to the business, and the manner of the employer’s performing it, where there is no defect of machinery, or unknown hazards.

The absence of any instruction in the general charge upon the subject of risks assumed by the employe in accepting employment wbuld, in our opinion, justify the asking of a special instruction upon that point, and that asked appears justified by the law and evidence of the case. The same argument would apply with equal force to the sixth instruction asked. The substance of it is that, if Minnick knew that there were no track walkers or watchmen at the bridge, he assumed the risks of disasters which might occur through their absence.

Such absence would appear to be properly classed as a peculiarity of the manner of the employer’s carrying on Ms business. It v'as apparently open and well known to many of the employes, and whether Minnick knew of it or not is a question correctly left to the jury. In not giving in the general charge or any special instruction the liability assumed by the plaintiff, we consider the court below <;rred, to the injury of the plaintiff in error. It is therefore ordered that the judgment be reversed, and the cause be remanded for a new trial.