J. T. Proffitt v. Missouri, Kansas & Texas Railway Company of Texas, 95 Tex. 593

BROWN, Associate Justice. Proffitt had been in the employ of the railway company for about one year and eight months, working about the" shops at Denison, “doing most anything,” for $1.25 per day. On the 27th day of July, 1900, he was assisting in removing a stationary engine out of a building which was about twenty feet high, with a flat roof,—the .walls being of brick. There had been three stationary boilers in the building, two of which had been removed a few days prior thereto.

These boilers projected through the wall of the building, there being about six or eight feet on the outside, and the dome and fire-box being on the inside of the building. To remove the boiler, the dome and fire-box were first removed, when the boiler was jacked up and put on rollers so that it could be moved out of the building. The brick in the wall of the building rested upon the boiler and had to be “punched out” in order to give space through which the boiler could be removed. The gang foreman, Tally, was present during the work and directed plaintiff and the other hands what to do and how to do it.

Plaintiff had been present and assisted in removing the other boilers, and had been at work on the day of his injury about thirty minutes. From the space in the wall from which one of the boilers had been removed bricks had fallen out and others were loose, so that a brace was placed there in order to sustain the bricks. The plaintiff had been engaged knocking out some of the brick with a sledgehammer, when another employe got up on the other boiler and began to punch the brick out with a piece of pipe, from which plaintiff got dirt in his eyes and stepped back from the work.

Just at this time the wall gave way and the roof and a part of the wall fell in, whereby Proffitt received his injuries. Plaintiff had never worked at brick work at any time, except to assist in putting up one smokestack, and he did not know that the wall was defective in any way, or that the work was dangerous; but he could see the openings from which the boilers had been removed, and also the door in the wall about the same place. The case was tried before a jury and the trial judge instructed the jury to return -a verdict for the defendant, which was done and judgment entered accordingly.

The Court of Civil Appeals affirmed the judgment of the District Court. Under the evidence the jury could have found that the railroad company negligently failed to provide a safe place for plaintiff to perform his work, or to adopt such rules and measures for performing the work as might have protected the plaintiff from injury while engaged thereat.

The evidence is not of that conclusive character that would authorize this court to hold, as a matter of law, that the plaintiff assumed the risk of injury from doing the work; therefore the trial court erred in instructing the jury to return a verdict for the defendant, and the Court of Civil Appeals erred in affirming the judgment of the District Court. It is ordered that both judgments be reversed and that this cause be remanded. Reversed and remanded.