HOUSTON & T. C. R. CO. v. ALEXANDER et al., 132 S.W. 119

WILLIAMS, J. The deceaseds whose death was the occasion of this action by the defendants in error for damages, was killed by a fall from the tender of one of defendant’s engines at Sherman. There is no dispute or uncertainty whatever about the facts. It was the duty of deceased to put fuel oil in the oil tank of the engine at night when it came into Sherman from the South.

His custom, and that of all who performed such service, was to enter the cab of the engine, ascend from its gangway to the top of the tender, or watertank, and walk along it until reaching a wooden box, to be described presently, then to step on the box and from it to the top of the oil tank, which stood on top of the watertank, but did not cover its entire width. After the oil had been let into the tank, the descent was made over the same way.

In making the descent on the night in question, the deceased stepped from the top of the oil tank to that of the box and, his foot slipping, fell to the ground and was fatally hurt. The box was one of two, exactly alike, which were parts of the regular equipment of such engines, and were fastened beside the oil tanks to the top of the watertank, or tender. It was lower than the top of the oil tank, so that it was convenient to use it as a step in going up and down.

It was built to contain tools used by the engineer, and, in order to turn water when it rained, its covering consisted of two lids which formed an apex over the center of the box and descended very gradually to the eaves, like a gently sloping gable roof.

Grease and dirt accumulated on the lids from Several causes, viz., from the feet of men walking over them with oil or grease and dirt on their shoes, from the occasional spilling of oil in filling the tank, and from the escape of it through air and gas vents or pipes in the tank ánd the settling of dust or cinders in running, and it is asserted that this condition was the cause of Alexander’s foot slipping.

All the witnesses say that the boxes were like those used on oil burning engines generally, that all of them soon came to be in the condition described, and that there was nothing unusual in this respect in the one on which Alexander slipped. He had been employed in the railroad service for 16 years, had been car inspector and repairer, had occasionally supplied engines with oil in daylight, and had been regularly engaged in doing that service at night six weeks or two months.

On account of the use of oil as fuel for the engines, it with dirt or cinders was necessarily on and about other parts of engines and tanks where men had to pass, and the evidence shows that there was nothing peculiar in this particular in the condition of the top of the box.

There is some very indefinite testimony to the effect that one of the engineers when he saw fresh grease on the box would wipe it off, and that at Ennis, tile next division point south of Sherman, the employés “sometimes wiped off the tool boxes and all the top of the tank.” This is all the evidence tending, in the least, to show that there could have been any expectation that the tops of the boxes were to be kept free of oil and dirt for the use of the employés. The wiping sometimes done, as shown by the statement referred to, evidently was not done as part of any precautions adopted for any such purpose.

On the contrary, the witnesses, with one voice, say that the condition described was the one usual upon this and all other such engines, and it appears that the boxes were walked over as they were, not only by those oiling engines as was deceased, but by firemen having occasion to go on the top of the tender. We are unable to see any foundation in this evidence for a finding of negligence; and, if there was no negligence, the deceased suffered from one of the risks ordinarily incident to the service.

Negligence must consist of the doing of something which a person of ordinary prudence would not have done, or the omission to do something which such person would have done under like circumstances ; and that which is relied on as constituting negligence must appear to be such from evidence offered. Was the mere keeping of the box in such a position for such a purpose

an act which persons of ordinary prudence using such engines would not have done? It is not asserted that it was. On the contrary, if the evidence is true, they all did it. Was the failure to keep from it the grease and dirt such an omission? The evidence, without controversy, shows that the condition existing in this respect was the usual and normal one resulting from the use to which the box was put. There was nothing in it differing from that of such things customarily furnished for the use of employés in the lRlroad business.

It was not an unusual or unexpected condition in any respect, nor one from which the employés looked for protection by precautions taken by the employer. When the condition, only complained of after the evént, thus conclusively appears to have been so treated by employer and employés engaged and skilled in the business, differing in no respect from others following the same business, how can a court or a jury say that there was a failure to use the care which persons of ordinary prudence would devote to that subject?

How can any conclusion be sustained but that the conduct of the business in this instance was as it is in others, and that those engaged in it so regarded it and treated the risk resulting as one of the incidents of that business? It is true that this court has never adopted that theory of the duty of the employer to his employés, which concedes to him the legal right to organize and conduct his business in his own way, however regardless it may be of their safety, if he will only let them know of the dangers to which he exposes them and obtain their consent to incur them.

That the doctrines of assumed risk and contributory negligence have often precluded them from complaining does not entirely preclude the operation of the principle to which this court has always adhered that the law imposes on employers the duty, in planning and pursuing their businesses, to exercise ordinary care with regard to the safety of the employés, and what we say of the facts of this case is said in full recognition of that principle.

But what is the standard by which the question whether or not that care has been exercised is to be determined but the conduct of prudent and careful men in the business under investigation? And when the evidence not only fails to show a departure from the line of conduct pursued by such men, but shows affirmatively complete conformity to it, how can the conclusion of negligence he drawn?

Whatever the experience of jurors may enable them to know of affairs of some kinds, it is certainly not true that they can be held to know how such a business as that here in question should be conducted better than all the employers and employés engaged in it. With only such evidence in the case, no issue is presented for a jury to pass upon. The contention for the plaintiff seems to be that the top of the box should have been kept clean. The statement made shows that there was no practice of doing so and that no one expected it to be done.

How, then, is it to be inferred that prudence required that it be done in the proper management of the business? What efforts would have been adequate to the end, and could they have kept the box in a safer condition than would result from its being let alone? The evidence furnishes no other answer than that found in the settled practice of all concerned. The case is very different from those in which the prevalence of a negligent habit or custom among some employers is invoked as a defense when it has caused injury.

In such cases evidence is furnished from which that which was done may be pronounced to have been negligence, and it is therefore held that the constant doing of it is no justification. Here the very test of negligence, when applied to the evidence, can result in no conclusion of its existence. Our former opinion on certified question, which was thought by the Court of Civil Appeals to control its judgment, was not addressed to the question of negligence on the part of the defendant, but to that as to the assumption by the deceased of a risk assumed to have resulted from his employer’s negligence.

Of course, a question as to the assumption of a risk growing out of the defendant’s negligence could not arise until there was evidence of such negligence. The manner of certifying the question implied that the Court of Civil Appeals had found that there was such evidence, and this court could only treat the case on that assumption. The entire record is now before us, and the statement of facts can be examined for the purpose of seeing whether or not the evidence furnishes any foundation in law for the recovery, and finding that it does not, we must reverse the judgment. Reversed and rendered.