TEXAS & P. RY. CO. v. ROGERS, 57 F. 378

PARDEE, Circuit Judge, (after stating the facts.) We are compelled to reverse and remand this case because the jurisdiction of the circuit court does not appear of record. Telephone Co. v. Robinson, 1 C. C. A. 91, 48 Fed. Rep. 769. As, however, we are advised that by proper amendment the jurisdiction can be shown, we deem it proper, in view of a new trial, to shortly consider the assignments of error. The first charge asked by the plaintiff in error and refused by the court was, in effect, equivalent to asking the court to instruct the jury to find for the defendant.

The transcript purports to coni ain ihe entire evidence offered on ihe trial, and that evidence shows Hint, if the railway company failed to furnish proper appliances to perform the work in question to such an extent that said appliance might he declared defective, the defect was a patent one, and clearly to the knowledge of the defendant in error.

In our opinion, the evidence does not show that an insufficient number of employes was furnished to assist in the work, hut, if a sufficient number was not furnished, that also was a patent defect. “A servant; is hound to see patent and obvious defects in appliances furnished him, and assumes all patent and obvious risks, as well as those incident to the business; and where he knows or ought to know of the defect in the appliances, and continues lo work with the same, and receives injuries therefrom, lie is treated as being guilty of contributory negligence, and cannot recover.” Wood, By.

Law, § 37!); and the authorities there cited fully sustain this proposition. “The servant, in order to recover for defects in the appliances in business, is called upon to establish three propositions:

(1) That the appliance was defective; (2) that the master had notice thereof or knowledge, or ought to have had; (3) that the servant did not know of the defect, and had not equál means of knowing with the master.” Id. § 386. The second assignment of error we consider well taken. The effect of the charge given by the court was that Sullivan, the temporary boss of the bridge gang, although a laborer, and actually assisting at the time that defendant in error was injured, was not a fellow servant with the defendant in error.

Under the evidence in the ease, and under the law as declared by the supreme court of the United States in Railroad Co. v. Baugh, 13 Sup. Ct. Rep. 914, as well as under the decisions of the supreme court of the state of Texas, (see Dallas v. Railway Co., 61 Tex. 196; Railway Co. v. Rider, 62 Tex. 267; Railway Co. v. Harrington, Id. 597; Railway Co. v. Watts, 63 Tex. 549; Railway Co. v. Welch, 72 Tex. 298, 10 S. W.

Rep. 529,) we are of the opinion that this was erroneous, and that the defendant railway company (plaintiff in error) was entitled to the charge asked and refused, to wit: •'If the deJendani in error was injured by the negligence of Lewis Sullivan, it was (lie act of a fellow servant, engaged in the same line of employment, and for which 1he company would not be liable.” We notice, further, in this case, that there was error in awarding costs in favor of the plaintiff in the court below. Bev. St. U. S. § 968.

The judgment of the circuit court is reversed, and the case is remanded, with instructions to dismiss the suit, unless, by proper amendment, the jurisdiction of the circuit court is made to appear of record.