Missouri, Kansas & Texas Railway Company of Texas v. J. W. Romans, 103 Tex. 4

Mr. Justice Williams delivered the opinion of the court. The defendant in error recovered the judgment from which this writ of error is prosecuted for damages for a personal injury received by him in the service of the plaintiff in error. The facts .upon which his right of recovery depends are thus stated by the Court of Civil Appeals: “Plaintiff at the time of the injury was in the employ of defendant, loading cars with gumbo at a plant owned and eontroHed by defendant.

At said plant there were three large embankments of burnt gumbo in parallel rows several hundred yards in length probably one hundred feet wide and twelve to fifteen feet high. These embankments were made originally by scooping out a ditch in the ground, piling dirt, old timbers and coal therein, in alternate layers and burning the black soil in this way so as to form a ballast known as burnt gumbo.

When the ballast in these embankments was ready to be moved, flat cars were run in on a track built parallel with and near to the edge of one of the embankments and the ballast was thrown upon these cars with scoop shovels by men employed to do that at so much per car.

These men so employed in loading the cars worked independently of each other and according to their own methods and practically in their own time, there being, however, a foreman who inspected the cars as to quality and quantity when loaded, accepted them when sufficiently loaded, and gave to the individual loader credit for the car at the agreed price. -The loading was begun at the outer edge of the embankment and when a few feet from the side of the embankment had been thus loaded and removed, the track crew would move the track nearer to the embankment from time to time and the loading would then proceed until the whole of the embankment had been loaded. . . .

Plaintiff had partly loaded a car when he stopped work for the night, and when he returned next morning the car had been moved some hundred feet or more from the position it occupied the evening before. In attempting to throw a shovel of gumbo on the car he made a misstep and his foot went into a hole which caused him to fall across a ridge of gumbo that had formed along the edge of the cross-ties by some of the gumbo falling as it was being loaded, and thereby hurt himself as complained of.

The hole into which he stepped and caused his fall, was approximately two and one-half feet long, two feet wide and one and one-half feet deep. This hole was filled, or nearly so, with fine dust or soot, from the gumbo, which obscured the hole, and said hole was not seen by plaintiff, nor was its existence known to him. Plaintiff was inexperienced in the work, having only been employed at this work five' days, a Sunday intervening. Defendant had a track crew out there who worked on and moved the track and leveled up the ground when necessary.

The evidence fails to disclose how the hole came to be there, nor is the evidence sufficient as to circumstances to warrant a conjecture as to how it was produced.” It is not to be understood from this statement that the evidence showed that the track on which stood the car which was being loaded by plaintiff had ever been moved, or that the track crew had ever worked over this ground after first laying the track, or that the condition had ever arisen in which it would have been their duty to go over it. These things are all left to conjecture.

We must hold that the evidence is legally insufficient to give rise to any just inference of negligence on the part of the defendant. The fact upon which plaintiff must found a right of recovery is the existence of a hole concealed by the soft matter with which it was apparently filled; for we can not agree that such a hole, unconcealed, at a place like this, would be any more dangerous or any more evidence of negligence than a like hole would be if located by a wagon into which a servant is shovelling dirt or other matter.

The risk from such a condition would be so slight and so obvious that the servant might well be expected to guard himself against it, and this would require no more experience than is possessed by the average adult. The place here in question is not like a depot platform, or a railroad track, or other similar place, and the same diligence in keeping it is not to be expected.

There might be negligence in causing or permitting the existence of a hole concealed as this one was at any place where people ought to be expected to pass, but, to show it, the evidence must justify the inference that some of the employes of the defendant for whose conduct it is responsible caused that condition, or knew, or, with ordinary care, would have known of its existence and have remedied it before plaintiff was hurt, and that some such happening as that of plaintiff’s hurt could reasonably have been anticipated.

As the Court of Civil Appeals have said, it can not in any way be inferred how this hole was caused. The evidence "fails to supply any fact from which any one can say when, how, or by whom the condition which made the use of the premises dangerous to plaintiff was produced. The evidence equally fails to show that the condition had existed so long as to justify an inference that the defendant knew, or, by the exercise of any degree of diligence that could be exacted of it, ought to have known of it before plaintiff was hurt.

If we undertake to determine the responsibility of the defendant for the acts or omissions of any of its servants, or of any class of its servants, we are at once confronted with the inquiry, what servant, or class of servants, caused or negligently permitted this condition? Eo hypothesis on which liability could be founded is supported by evidence unless it is true that the mere existence of the hole in the condition described by the witnesses is of itself evidence of negligence.

This could only be said if it were true that a hole sd situated could not probably have existed without knowledge on part of some employe of defendant for whose negligence it is responsible, supposing that employe had exercised proper diligence; and it seems obvious that this is not true. The very gist of plaintiff’s complaint is that' the hole was concealed. It is not shown that any one ever saw it before the accident.

It may have existed before the bed was laid, or have been caused in the burning, or have been excavated in the removal of the gumbo, or afterwards, and may have become filled as described by the witnesses at any stage of the work. It does not even appear whether or not the hole was in the ground before covered by the gumbo beds. The Court of Civil Appeals says that the defendant ought not to have put an inexperienced servant to work at such a dangerous place, but this assumes the very fact to be proved, which is, that the defendant is chargeable with knowledge of the condition that made the place dangerous.

Besides, we can not see that inexperience of the plaintiff has anything to do with the question. The concealed hole was as dangerous to an experienced as to an inexperienced servant and either would have had sufficient knowledge to avoid such a risk if known to him.

It is further said that the track crew should have remedied the condition, but it is not shown that they had been over the ground after first laying the track, or that the circumstances had ever existed in which, in the proper discharge of their duties, they should have gone over it, or that had they done so the hole would have been discoverable by them. It does not appear that the hole was in existence and discernible at any time -when they had worked or should have worked about this place.

This incompleteness of the evidence renders it impracticable to discuss several of the questions of law raised by the parties with any certainty that they are the real questions in the case. For instance, the Court of Civil Appeals held that those who worked in filling other cars with gumbo at other times than those at which plaintiff was hurt were not his fellow servant, and to this we agree. They were not working at the same time and place nor on the same piece of work.

But how is it possible to say that any act of those servants produced the condition in question, or, if so, that such act was negligent, when we can not even conjecture how the hole was caused. The Court of Civil Appeals further says: “That, the place where the work of shoveling ballast was being done was constantly changing in the progress of the work does not affect the question at issue.

It is true that the shoveling of the gumbo from the ground would have a tendency to leave the surface of the ground uneven, but not to the extent that it was so rendered by the hole into which the plaintiff slipped and caused him to fall. “There is no evidence showing any other hole in like dimensions on the ground, or one that approximated its extent similarly situated, therefore such changing conditions has no application to this proposition.” There was evidence of a statement of the plaintiff that he was hurt because he stood in an unusually low place and had to throw higher and there was evidence that the bed of the pit was made by the use of scrapers, not as level as a floor, but as level as the scrapers would leave it.

It is evident that in shoveling the gumbo from such a place inequalities in the ground might be produced and the mere doing of such work might produce transitory conditions the mere allowance of which would not constitute negligence on the part of the employer. The particular spots where shoveling was to be done were not permanent places kept by the master wherein the servant was to do his work, but were temporarily used and constantly changing. What the condition really was that caused plaintiff’s injury was a question for the jury under proper instructions.

There is a qualification, applicable to such situations, of the general principle as to the master’s duty in keeping the places where his servants are to do their work. (Labatt, Master and Servant, sec. 588; 26 Cyc., 1324.) Whether or not this should be given in a charge to the jury will of course depend on the facts developed at another trial, and whether or not those facts are sufficient to authorize the submission of the cause to a jury. As the evidence now stands, it furnishes no legal basis for a recovery by plaintiff.

Because of the insufficiency of the evidence the judgment must be reversed; but as the facts may be more fully developed at another trial, the cause will be remanded. Reversed and remanded.