Gulf, Colorado & Santa Fe Railway Company v. John W. Redeker, 67 Tex. 181

Gaines, Associate Justice. This was an action of damages for personal injuries, brought by appellee, a minor, by his next friend, against appellant. Appellee was employed as a brakeman on a construction train of appellant, and received the injury while coupling cars at night. The evidence shows that the accident was caused by a defective pilot to the engine and a defective track on the siding where the coupling was attempted to be made. The track was not filled in between the cross ties, and by reason of this, appellee in stepping upon it fell and his leg was caught by the pilot and crushed.

The appellant complains that “the court erred in that part of its charge wherein the jury were instructed that it was the duty of the defendant to furnish a safe road bed; and that the burden of proof shifted to defendant to show that plaintiff was guilty of contributory negligence.” Under this assigment it is submitted in substance that, because the evidence showed that appellee was employed as a brakeman on a construction train engaged in building an unfinished road, so much of the charge as instructed the jury that it was the duty of the company to furnish a safe road bed was calculated to mislead them.

That there must of necessity be a time in the constructing of a railroad when its track is not perfectly safe, we think a proposition that does not admit of doubt. The employes operating a train at such time must be presumed to have assumed the additional risk incident to that state of affairs.

But we can not assent to the doctrine that, when a portion of a road is completed and is being operated for construction purposes only, the company is not bound to use all reasonable care in putting it into such condition that its employes, engaged in running trains over it, may use it with safety to themselves and their co-employes. We see nothing in the circumstance that a road is not finished so as to be opened for the purposes of traffic to make this an exception to the general rule that the master must furnish the servant with safe machinery and appliances for the work he is called upon to perform.

In this case the injury occurred on a side track. The road had been completed beyond this, and trains were being run past it for construction purposes; and in the absence of some proof showing a necessity for leaving the siding in an unfinished state, it must be held that it was the duty of appellant to put it in a condition to be operated in safety by its employes. It follows from what has been said that the charge of the court was not calculated to mislead the jury upon this point.

Under the assignment of error above set out, counsel for appellant submit the further proposition that “It was error to instruct the jury ‘that the burden of proof of the contributory negligence of the plaintiff shifted to the defendant,’ under the pleadings and evidence in this case, and the charge of the court was calculated to mislead the jury.” The charge of the court upon this subject is as follows: “Under these issues the burden of proof is upon plaintiff and to entitle him to recover, he must have shown to your satisfaction that he has been injtired substantially as alleged in his petition, and that such injury was not caused by contributory negligence of plaintiff, as hereinafter charged.

If this has been shown to your satisfaction, the burden of proof then shifts to the defendant, and it devolves upon the defendant to show that it is not liable for damages by reason of the contributory negligence of plaintiff, as hereinafter charged.” There is nothing in these instructions of which appellant has "the right to complain. In the case of the Dallas & Wichita Railway Company v.

Spicker, 61 Texas, 427, it is held that if plaintiff’s evidence shows that the injury was caused by the negligence of defendant, and does not disclose any fact from which a want of care on his part might be inferred, “then the burden is on the defendant to prove that plaintiff was guilty of such negligence.” It is also decided in the case of the Houston & Texas Central Railway Company v. Cowser, 57 Texas, 293, that a petition need not negative the negligence of plaintiff, unless his averments show prima facie that he was negligent.

We are aware that a contrary rule has been laid down by some courts, but we see no reason for a departure at this time from the doctrine of our own courts. The testimony nowhere discloses any negligence on part of appellee, and hence, we think, there was no error in the charge in regard to the burden of proof. The charges asked by appellant in the court below were three in number, and each presented a distinct issue. They were all refused.

The assignment upon this action of the court is that “the court erred in refusing the charges asked by defendant.” The rules provide that “assignments of error which are expressed only in such general terms as that the “ * * court erred in its charge when there are a number of charges * * and the like * * will not be regarded by the court as a compliance with the statute * * and will be regarded as a waiver of errors * * .” (See Rule 26, 47 Texas, 602.) This assignment, therefore, is too general and will not be considered.

The fifth assignment of error is, that “the verdict of the jury is contrary to the evidence with respect to the risk that plaintiff assumed in taking work as a brakeman upon the construction train of defendant, upon an unfinished road.” The evidence on the trial showed that the road was being operated for construction purposes, that appellee was injured in the night, and that the injury was caused by the fact that the space between the cross ties had not been filled, and that he was ignorant of this defect at the particular place.

It would seem to be a matter of no moment whether the pilot was in proper order or not; but for the defect in track he would not have fallen and no accident would have occurred. There is nothing shown to relieve appellant from liability for the injury except the fact that the road was not open for the general business of transportation; and we think this fact did not absolve the company from responsibility. The evidence, therefore, warranted the finding of the jury. Appellee lost one leg by reason of the accident, and the other was also injured.

He had not recovered fully at the time of the trial We can not, under the rulings of this court in similar cases, say the damages were excessive. The motion for a new trial was based upon alleged errors which have already bben considered, and it was not error to overrule it. Because we find no error in the judgment, it is affirmed. Affirmed. Opinion delivered December 21, 1886.