Geo. Green v. Cross and Eddy, Receivers, etc., 79 Tex. 130

GAINES, Associate Justice. This was a suit for damages for personal injuries, brought by appellant against appellees as receivers of the Missouri, Kansas & Texas Railway Company. Delivered December 16, 1890. The conclusions of fact found by the court in respect to the cause of the injury are as follows: “That the-plaintiff was a

section hand on the Missouri, Kansas & Texas Railway at the time alleged in plaintiff’s petition, on the first

section of 'what is known as the East Line & Red River Railway, from Jefferson, Texas, seven miles west, and had been for several months. That the iron rails of said road over said

section were considerably worn, and in places mashed so as to make the track uneven; that the defendant knew the condition of the track over said section; that on the day alleged in plaintiff’s petition he was riding on a hand car of defendant, going from where he had been at work on said

section to the place where the

section hands were carrying said hand car when they quit the day’s work; that whilst so riding on said hand car with three others, his colaborers, the said car was thrown from the track, caused from a defect in one of the rails of said road, and the plaintiff was thereby thrown against the end of a crosstie, striking the plaintiff on the left leg opposite the hip, which caused a severe wound,” etc. ■ As matter of law the court found that the plaintiff could not recover, “ because his injuries were the result of his own negligence in not reporting the condition of the track to those whose duty' it was to repair it, and because’ the defects in said track were patent, and it was his duty to repair the same or to report its condition to his

section boss.” The assignments of error question the correctness of the legal propositions upon which the judgment was based. These propositions can not be sustained. The law does not impute negligence to a servant for using the machinery of his master which he knows to be defective. He merely assumes the risk incident to such defect, and can not recover damages for any injury which results from it. It is not true as a legal proposition that it is the duty of a

section hand on a railroad to repair all patent defects in the track on his

section or to report such defects to his foreman. What his duty may be is a matter of fact, and depends upon the terms of his contract for service. But it does not follow that the judgment must be reversed because the trial judge has given a wrong reason in support of it. The findings of fact show (and the evidence upon the issue is undisputed) that the track was out of repair’, that the iron was worn, and that the plaintiff knew the general condition of his section.

He took the risk incident to that general condition, and it matters not whether he knew of the particular defect in track which caused the injury or not. Railway v. Somers, 71. Texas, 700. He knew that just such defects existed in the track, and it does not avail him to say that he was ignorant of the one which caused the injury. The court has rendered a correct judgment. The fact that a wrong reason is given for it does not j ustify its reversal. It is therefore affirmed. Affirmed.